No. 3--96--0407
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellant, )
)
v. ) No. 95--TR--71503
)
DEBBIE FOCIA, ) Honorable
) Martin Rudman,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE SLATER delivered the opinion of the court:
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The defendant, Debbie Focia, was charged with driving while
license suspended. 625 ILCS 5/6--303 (West 1992). The trial
court dismissed the charge. The State appeals, and we reverse.
The record reflects that on January 13, 1995, the defendant
was charged with driving under the influence of alcohol (DUI).
625 ILCS 5/11--501 (West 1992). Her statutory summary suspension
took effect on March 1, 1995. On September 27, 1995, the
defendant filed a petition to rescind the statutory summary
suspension. Before that petition was heard, she received a
ticket for driving while license suspended on November 1, 1995.
On November 13, 1995, an agreed order was entered rescinding her
statutory summary suspension based upon a due process violation.
On November 17, 1995, the Secretary of State notified the
defendant that her statutory summary suspension was removed from
her driving record and rescinded on that date.
Five months later, the defendant moved to dismiss the charge
of driving while license suspended. At a hearing on the motion,
the defendant argued that the rescission of her suspension
retroactively reinstated her license as of March 1, 1995. The
trial court agreed. In its order, the trial court found that if
the legislature had intended a rescission of a statutory summary
suspension to only have a prospective application, it would have
used a word other than "rescission" in the statute. Therefore,
the court held that the rescission applied retroactively to
March 1, 1995, and dismissed the charge.
On appeal, the State argues that the trial court erred in
finding that the rescission order had retroactive effect. The
State contends that the statutory summary suspension was still in
effect until it was removed from the defendant's driving record
on November 17, 1995. Thus, the State argues, the trial court
erred in dismissing the charge.
Initially, we note that no appellee's brief has been filed
in this case. Nonetheless, we may reach the merits of the case
because the record is simple and the claimed error is such that
the court can easily decide it without the aid of an appellee's
brief. First Capitol Mortgage Corp. v. Talandis Construction
Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).
Here, we find that the trial court erred in holding that the
rescission of a statutory summary suspension should be applied
retroactively. The Illinois Vehicle Code (Code) allows a
defendant to obtain a hearing on a statutory summary suspension
before the suspension takes effect. People v. Esposito, 121 Ill.
2d 491, 521 N.E.2d 873 (1988). The hearing is triggered by the
defendant's filing of a petition to rescind. 625 ILCS 5/2--
118.1(b) (West 1992). Thus, the question of whether a defendant
shall suffer the effects of an improper suspension depends
largely on her own diligence. Esposito, 121 Ill. 2d 491, 521
N.E.2d 873.
Where the defendant does not obtain a hearing before the
suspension takes effect, we find that any subsequent rescission
should not be applied retroactively. To hold otherwise would
condone the defendant's disregard of the law. Moreover, our
ruling is consistent with section 2--118.1 of the Code, which
states that a pending hearing on a petition to rescind shall not
stay the effect of a suspension. 625 ILCS 5/2--118.1(b) (West
1992). This section implies a general legislative intent that
suspensions shall remain in full force and effect until proven to
be invalid.
Accordingly, the judgment of the circuit court of Will
County is reversed.
Reversed.
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. I would find that the trial court was
correct in holding that the rescission of a statutory summary
suspension should be applied retroactively.
A rescission is by definition retroactive. The term
"rescission" is the past participle of the term "rescind," which is
defined as "to void; repeal *** nullify." American Heritage
Dictionary 1105 (2d coll. ed. 1985); see also Black's Law
Dictionary 1174 (6th ed. 1990) ("to abrogate, annul, avoid or
cancel *** not merely to terminate *** but to abrogate from the
beginning and restore parties to relative positions they would have
occupied").
Words used in a statute are to be given their plain, ordinary
meaning. Granite City Division of the National Steel Co. v.
Pollution Control Board, 155 Ill. 2d 149, (1993). Giving the
plain, ordinary meaning to the term "rescind," I would hold that
the circuit court's order rescinding the defendant's statutory
summary suspension rendered the suspension void and abrogated from
the beginning, i.e. as if had never been imposed. I would affirm
the trial court's order on that basis.
I also do not agree that reversing the trial court in this
matter effectuates a goal of protecting the public from the risk of
impaired drivers. First, I question whether the statutory summary
suspension statute effectuates the goal of getting drivers likely
to commit DUI off the road particularly when the suspension does
not take effect until 45 days after the individual is notified of
the suspension of his or her license. (625 ILCS
5/11-501.1(g)(Michie 1995)). Second, I question how this goal of
the summary suspension statute can be effectuated in this
situation where, by virtue of the rescission of the suspension, we
must assume that the suspension should never have taken place.
For the reasons discussed, I respectfully dissent.
JUSTICE LYTTON, specially concurring:
When the General Assembly enacted legislation providing for
the rescission of statutory summary suspension of drivers licenses
(625 ILCS 5/2-118.1 (West 1994)), it failed to provide a definition
for "rescission" and failed to state whether such rescissions
should apply retroactively. Thus, we are left with the difficult
task of giving meaning to the language of the statute. For the
reasons stated below, I believe that the charge of driving while
license suspended must be reinstated.
When construing the meaning of a disputed statute, this court
must ascertain and give effect to the intent of the legislature.
People v. Robinson, 172 Ill. 2d 386, 392, 667 N.E.2d 1305, ____
(1996). However, in making a determination on the issue before
this court, case law provides little guidance. Within different
contexts, Illinois courts have assigned a variety of definitions to
the term "rescission," including the setting aside of a transaction
(Smith v. First National Bank of Danville, 254 Ill. App. 3d 251,
266, 624 N.E.2d 899, 910 (1993)), termination with restitution
(Lempa v. Finkel, 278 Ill. App. 3d 417, 426, 663 N.E.2d 158, 164-65
(1996)), restoration of the parties to their prior positions
(Puskar v. Hughes, 179 Ill. App. 3d 522, 528, 533 N.E.2d 962, 966
(1989)), and declaring a transaction void from inception (Farmers
Automobile Insurance Association v. Pursley, 130 Ill. App. 2d 980,
985, 267 N.E.2d 734, 738 (1971)). Similarly, "rescind" has been
assigned several meanings, including to abrogate, annul, vacate or
set aside. Union Electric Co. v. Illinois Commerce Commission, 39
Ill. 2d 386, 392-93, 235 N.E.2d 604, 609 (1968).
Despite these disparate definitions of "rescission," it is
clear that the trial judge erred in dismissing the charge of
driving while license suspended. Defendant's delay in seeking
rescission is contrary to the terms and purpose of the statutory
scheme established by the General Assembly. Under the statutory
time frame, the State is barred from suspending a driver's license
until the 46th day after the defendant receives notice that her
license will be suspended. 625 ILCS 5/11-501.1(e) (West 1994).
During this time, the defendant is entitled to request a hearing
and that hearing must be held within 30 days of her request. 625
ILCS 5/2-118.1(a) (West 1994). Thus, the legislature has
established a framework where a judicial determination can be made
regarding rescission prior to the suspension taking effect. As a
result of her own delay, however, defendant failed to take
advantage of this time frame.
When a driver continues to drive eight months after her
licensed is suspended, a subsequent rescission order should not
apply retroactively. Three considerations guide this
determination. First, where statutory language is susceptible of
more than one construction, the statute should receive the
construction that will effect its purpose rather than defeat it.
Klier v. Siegel, 200 Ill. App. 3d 121, 124, 558 N.E.2d 583, 586
(1990). The goal of the summary suspension statute is to increase
highway safety by protecting the public from the special risk of
harm presented by impaired drivers (People v. Lopeman, 279 Ill.
App. 3d 1058, 665 N.E.2d 881, ___ (1996)). This goal is not
advanced by rewarding drivers who delay in filing petition to
rescind their summary suspensions. Second, the offense of driving
while license suspended involves absolute liability. "Conviction
requires only proof that the defendant drove in violation of the
statute at the time [her] license was suspended." People v.
Stevens, 125 Ill. App. 3d 854, 855, 466 N.E.2d 1321, 1322 (1984)
(emphasis added). I have found no authority supporting the
proposition that the State is required disprove the existence of a
rescission between the time of arrest and time of trial. Third, as
a matter of general law, after learning of a basis for rescinding
a transaction, a party who desires rescission must elect to do so
within reasonable diligence and disaffirm it within a reasonable
time. See Brandt v. Phipps, 398 Ill. 296, 75 N.E.2d 757 (1947).
The statutory time period provides an indication of reasonableness
here. Defendant should not benefit from her own failure to
promptly seek rescission.
The judgment of the circuit court of Will County must be
reversed. However, in light of the important questions raised by
this case and the likelihood that similar issues will arise in
other factual settings, I encourage the legislature to clearly
define "rescission" and clarify the issue of retroactivity in this
context.