specially concurring:
When the General Assembly enacted legislation providing for the rescission of statutory summary suspension of driver’s 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 452, 457, 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, 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 Ass’n 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 Comm’n, 39 Ill. 2d 386, 393, 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 license 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, 1060, 665 N.E.2d 881 (1996)). This goal is not advanced by rewarding drivers who delay in filing petitions 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.” (Emphasis added.) People v. Stevens, 125 Ill. App. 3d 854, 855, 466 N.E.2d 1321, 1322 (1984). I have found no authority supporting the proposition that the State is required to 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 with 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.