dissenting:
I respectfully dissent. The majority holds that the 30-day time limit in section 2 — 118.1(b) of the Illinois Vehicle Code (Code) (625 ILCS 5/2 — 118.1(b) (West 2004)) applies to refiled petitions to rescind statutory summary suspensions, despite the fact that defendant’s own conduct caused him not to have a hearing within 30 days. For the following reasons, I would affirm the trial court’s decision denying defendant’s motion to dismiss.
Section 118.1(b) states as follows:
“Within 90 days after the notice of statutory summary suspension ***, the person máy make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request *** the hearing shall be conducted by the circuit court having jurisdiction.” (Emphasis added.) 625 ILCS 5/2 — 118.1(b) (West 2004).
Our supreme court has stated that in order to comply with due process requirements, “ ‘the hearing required in section 2 — 118.1(b) must be held within the 30 days unless delay is occasioned by the defendant.’ ” (Emphasis in original.) People v. Schaefer, 154 Ill. 2d 250, 262 (1993), quoting In re Summary Suspension of Driver’s License of Trainor, 156 Ill. App. 3d 918, 923 (1987). In other words, a defendant is not entitled to a hearing within 30 days after filing the petition if the defendant’s own conduct caused the delay. Schaefer, 154 Ill. App. 3d at 270. Because defendant’s own conduct caused the delay in this case, the trial court properly denied his motion to dismiss.
In reviewing the procedural history, the record shows that the State was ready to proceed on defendant’s original petition on three occasions. Defendant filed his original petition on November 22, 2005, and the State answered ready on December 14, 2005, the first appearance date, and on December 28, 2005. However, defendant moved for continuances on these two dates. On January 11, 2006, defendant and the State agreed to continue the cause to February 8, 2006. On Febru-aiy 8, 2006, the State again answered ready to proceed on his petition, but defendant moved to voluntarily dismiss his petition and sought leave to file a motion to quash his arrest and suppress the evidence seized. The trial court dismissed defendant’s petition to rescind and granted him leave to file a motion to quash and suppress. The cause was continued to April 5, 2006, for a hearing on defendant’s motion to quash and suppress. On February 9, 2006, the day after he voluntarily dismissed his petition to rescind, defendant refiled an identical petition to rescind, knowing that the next court date set for the cause was more than 30 days later (April 5, 2006). Because defendant’s conduct (i.e. requesting continuances, voluntarily dismissing his original petition, and refiling an identical petition the next day) caused him to not have a hearing within 30 days, he is not entitled to a dismissal of his statutory summary suspension.
The majority characterizes the issue as whether the 30-day time limit in section 2 — 118.1(b) applies to refiled petitions to rescind. According to the majority, “[njothing in section 2 — 118.1(b) excludes from the 30-day time limit refiled petitions to rescind.” 374 Ill. App. 3d at 388. However, the converse is also true: there is nothing in the statute that extends the 30-day time limit to refiled petitions. More importantly, the majority overlooks the real issue in this case, which is whether defendant’s conduct caused the delay. In holding that a refiled petition triggers a new 30-day time limit, the majority ignores defendant’s conduct up until the refiled petition. Although the State answered ready three times on defendant’s original petition, and defendant was responsible for the delay, the majority faults the State for not conducting a hearing within 30 days on the refiled petition. I disagree with this reasoning. The supreme court has construed section 2 — 118.1(b) in a way that champions the interests of both defendants and the State: a defendant retains the right to enforce a timely hearing under section 2 — 118.1(b) while the State is guaranteed at least 30 days to prepare for the hearing once that right is asserted. People v. Cosenza, 215 Ill. 2d 308, 316 (2005). Once defendant delayed the hearing beyond the 30-day time limit on his original petition, I believe that defendant abandoned the right to enforce a timely hearing on his refiled petition.
This conclusion is supported by Schaefer and People v. Lagowski, 273 Ill. App. 3d 1012 (1995), where the defendants’ own conduct also caused them to abandon their rights to enforce hearings within the 30-day time limit. In Schaefer, the defendant filed a petition to rescind his statutory summary suspension, but it did not appear in the record. Schaefer, 154 Ill. 2d at 265-67. When the parties appeared in court on other pleadings filed by the defendant, both the trial court and the State inquired whether the defendant had filed a petition to rescind. However, each time the matter was discussed, defense counsel either stood mute or advised the court and the State that he would not answer any questions. Schaefer, 154 Ill. 2d at 265-68. The defendant then moved to dismiss the summary suspension because he did not receive a hearing on his petition within 30 days. Schaefer, 154 Ill. 2d at 267. Because the defendant’s own conduct contributed to the delay, the supreme court held that the defendant’s motion to dismiss should have been denied. Schaefer, 154 Ill. 2d at 268. Similarly, in Lagowski, the defendant herself set a hearing date for her petition to rescind that was beyond the 30-day period. Lagowski, 273 Ill. App. 3d at 1016. The court held that because it was the defendant’s own conduct that caused the hearing to be held more than 30 days after the petition was filed, she abandoned her right to the earlier date that section 2 — 118.1(b) allowed. Lagowski, 273 Ill. App. 3d at 1016. According to the court, “[i]f the State’s burden to set a date [were] unconditional, the supreme court would not have recognized an exception where a defendant’s conduct ‘contributed to the delay.’ ” Lagowski, 273 Ill. App. 3d at 1016.
The majority attempts to distinguish Schaefer by stating that defense counsel in this case did nothing to prevent the trial court from conducting a hearing within 30 days of the refiled petition. However, as stated, the majority ignores all of defendant’s conduct in delaying a hearing on the original petition and focuses exclusively on the time period following the refiled petition, as though the refiled petition somehow wiped the slate clean. Unlike the majority, I do not read the statute as placing an unconditional burden upon the State to set a hearing date within 30 days when the defendant himself abandoned the 30-day guarantee the first time around. Under the majority’s reasoning, a defendant is encouraged to manipulate the system by refiling a petition and starting the 30-day clock anew after causing the delay on the original petition. Moreover, when defendant refiled an identical petition to rescind the day after he voluntarily dismissed his original petition, he knew that the next court date was more than 30 days later. While the majority reasons that the April 5, 2006, court date applied only to defendant’s motion to quash and suppress, this reasoning is based on the flawed premise that a refiled petition triggers a new 30-day time limit. The right to enforce a timely hearing did not extend to his refiled petition once he abandoned that right on his original petition.
The majority also attempts to distinguish Schaefer and Lagowski based on the fact that they did not involve refiled petitions. However, I do not believe that defendant’s refiling of an identical petition entitles him to a different analysis. As previously mentioned, the majority’s framing of the issue ignores whether defendant’s own conduct prevented him from taking advantage of the 30-day time limit. Although the majority relies on McClure to support its interpretation, McClure made clear that the civil rule that governs refiling actions applies to petitions to rescind; it did not address whether the 30-day time limit in section 2 — 118.1(b) applies to refiled petitions. Thus, I do not agree that McClure compels the result reached by the majority; Schaefer and Lagowski are more instructive here.
As a final matter, I note that the majority characterizes this interpretation of section 2 — 118.1(b) as a “blanket rule” that does not differentiate between delays perpetrated by gamesmanship and those due to legitimate reasons. However, in this case, the trial court specifically found that defendant had “intentionally manipulated” the court’s schedule by delaying the original petition, refiling an identical petition at the same time he filed a motion to quash and suppress, and agreeing to a court date outside of the 30-day period. By expanding the 30-day time limit to a refiled petition, it is the majority who creates a “blanket rule” that allows and even encourages the sort of “gamesmanship” that occurred here. In short, I do not believe that defendant should be able to cause the hearing to be delayed beyond the 30-day period on his original petition, voluntarily dismiss that petition, refile an identical petition the next day, and then get a second bite at the 30-day time limit. Accordingly, I would affirm the decision of the trial court denying defendant’s motion to dismiss.