{
  "id": 2695904,
  "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Charles Liddell, Defendant-Appellee",
  "name_abbreviation": "People v. Liddell",
  "decision_date": "1974-05-17",
  "docket_number": "No. 59066",
  "first_page": "794",
  "last_page": "797",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T16:53:04.796688+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellant, v. Charles Liddell, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is an appeal by the State from an order vacating the suspension of defendant\u2019s driver\u2019s license.\nOn appeal, the State contends that (1) the Illinois implied consent statute, sec. 11 \u2014 501.1 of the Illinois Vehicle Code (S.H.A. 1973, ch. 95\u00bd, par. 11 \u2014 501.1) provides for the mandatory suspension of driving privileges where a person refuses a breathalyzer test and then fails to request a hearing within the 28-day period provided by the statute; and (2) after a suspension under those circumstances, the trial court does not have the power to vacate.\nDefendant was arrested on December 9, 1972, and charged with driving under the influence of intoxicating liquor and improper lane usage. It appears that after being informed of his rights under the statute, defendant refused to submit to the breathalyzer test provided therein.\nAfter such a refusal, the statute provides for a series of actions which are separate from a trial on the charge of driving under the influence of intoxicating liquor. They are: first, that tire arresting officer \u201cshall file\u201d with the clerk of the circuit court a sworn statement which, among other things, informs the clerk that a breathalyzer test was refused; second, that the clerk \u201cshall thereupon notify\u201d the person refusing the test that, \u2022unless he requests in writing a hearing concerning his refusal within 28 (days of the mailing of the clerk\u2019s notice, his driving privileges will be .suspended; and third, if no hearing is requested within the 28-day period, the clerk \u201cshall so notify the Secretary of State who shall automatically suspend such person\u2019s driver\u2019s license * *\nDefendant appeared in court on January 11, 1973, the trial date for the. two charges which had been placed against him by the arresting officer, but the case was continued until February 14,1973. On that date defendant\u2019s attorney .informed the court that defendant had appeared without counsel at the January 11 hearing and had been told by the court \u201cthat everything would come up on the 14th\u201d and that defendant didn\u2019t know a separate hearing was required on his refusal to take the test. On these representations the trial court granted defendant a hearing on his refusal and, on the testimony of defendant to the same effect, the court vacated the suspension of his license.\nOPINION\nThe principle question presented here concerns the power of the court to vacate the suspension of defendant\u2019s driver\u2019s license where no request was made within the 28-day period for a hearing on his refusal to take a breathalyzer test, required by the implied consent statute.\nWe initially note that it is clear that tire statute provides that where there has been no timely request for a hearing concerning the refusal of a breathalyzer test, the Secretary of State \u201cshall automatically suspend\u201d the license of the person refusing the test (sec. 11.501.1(d)). In construing statutes, courts have generally held the word \u201cshall\u201d to be mandatory, particularly when the word is addressed to a public official, as it is here. (Schmidt v. Powell, 4 Ill.App.3d 34, 280 N.E.2d 236.) Whether the word \u201cshall\u201d is mandatory or discretionary generally depends on the legislative intent. (Cooper v. Hinrichs, 10 Ill.2d 269, 140 N.E.2d 293.) Here, a reading of the provisions of the implied consent statute which requires that the arresting officer \u201cshall\u201d file a sworn statement, that the clerk \u201cshall thereupon\u201d notify the person refusing the test, and that the clerk \u201cshall\u201d notify the Secretary of State, who \u201cshall\u201d automatically suspend the license, compels the conclusion that the word \u201cshall\u201d was intended by the legislature to be mandatory.\nWe note also that the record does not include the original or a copy of the clerk\u2019s statutory notice to the defendant, informing him of his right to request a hearing. There is, however, a form in the record entitled, \u201cCourt Action and Other Orders\u201d, which contains the following entries:\n\u201c12-9 Report and Affidavit of Arresting Officer filed.\n12-12 Clerk\u2019s Notice to driver given as shown by copy of Notice with Certificate of Mailing attached.\n# # e\n1-12-73 Notice given the Secretary of State.\u201d\nIt appears from these entries that the notice to defendant was dated and mailed on December 12, 1972, in which event the 28-day period to request a hearing ended on January 9, 1973, which of course was 2 days prior to the first hearing on January 11, 1973. In view thereof and considering that there is apparently no question that defendant received the Clerk\u2019s notice and that no request was made for a hearing on his refusal within 28 days after mailing of the Clerk\u2019s notice, we are of the opinion that the trial court improperly granted a hearing to defendant on February 14, 1973, concerning his refusal to submit to the statutory test and that it erroneously vacated the suspension of defendant\u2019s driver\u2019s license.\nDefendant contends the trial court had the power to review the action of the Secretary of State. He points out that sec. 2 \u2014 118(e) of the Illinois Vehicle.Code (Ill. Rev. Stat. 1971, ch. 95\u00bd, par. 2 \u2014 118(e)) provides that the action of the .Secretary of State in suspending any license shall be subject to judicial review in the circuit court. Sec. 2 \u2014 118(e) does so provide for judicial review, but goes on to provide: \"and the provisions of the \u2018Administrative Review Act\u2019 * * * are hereby adopted and shall apply to and govern every action for the judicial review of final acts or decisions of the Secretary of State hereunder.\u201d Here, however, we are concerned with the vacation by the trial court of the suspension of defendant\u2019s driver\u2019s license. Under these circumstances, we believe that the review of this suspension should have been under the provisions of the Administrative Review Act.\nFor the reasons stated, the judgment is reversed and remanded with directions to reinstate the suspension of defendant\u2019s driver\u2019s license.\nReversed and remanded with directions.\nDRUCKER and LORENZ, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE SULLIVAN"
      }
    ],
    "attorneys": [
      "Bernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Michael J. Polelle, Assistant State\u2019s Attorneys, of counsel), for the People.",
      "Herbert R. Goldstein, of Chicago (Herbert N. Sirott and Barry Kramer, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Charles Liddell, Defendant-Appellee.\n(No. 59066;\nFirst District (5th Division)\nMay 17, 1974.\nBernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Michael J. Polelle, Assistant State\u2019s Attorneys, of counsel), for the People.\nHerbert R. Goldstein, of Chicago (Herbert N. Sirott and Barry Kramer, of counsel), for appellee."
  },
  "file_name": "0794-01",
  "first_page_order": 818,
  "last_page_order": 821
}