{
  "id": 2586907,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. ROBERT A. JOHNSON, Petitioner-Appellee",
  "name_abbreviation": "People v. Johnson",
  "decision_date": "1990-09-07",
  "docket_number": "No. 3-90-0125",
  "first_page": "809",
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  "last_updated": "2023-07-14T20:29:37.094110+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. ROBERT A. JOHNSON, Petitioner-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe petitioner, Robert A. Johnson, filed a petition to rescind the statutory summary suspension of his driver\u2019s license. The trial court granted his petition, and the State appeals. We affirm.\nThe record reveals that on October 14, 1989, the petitioner was issued a citation for driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11\u2014501(a)(2)). He was also served with a notice of summary suspension based upon his refusal to submit to a breathalyzer test (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11\u2014501.1). On November 22, 1989, the petitioner filed a petition to rescind his summary suspension and a petition for a judicial driving permit (JDP).\nA hearing was subsequently set for December 6, 1989, on the petition for a JDP. No hearing was set for his petition to rescind the summary suspension.\nOn January 4, 1990, the petitioner filed a motion to strike the statutory summary suspension, alleging that the clerk of the circuit court had failed to set a hearing on his rescission petition within 30 days as required under section 2\u2014118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 2\u2014118.1(b)). Following a hearing on the motion, the trial court found that since no hearing date was set within 30 days, the petitioner\u2019s summary suspension must be rescinded.\nThe State argues on appeal that the trial court erred in concluding that it was the prosecutor\u2019s or the clerk\u2019s responsibility to set the hearing date.\nSection 2 \u2014 118.1(b) of the Illinois Motor Vehicle Code provides in relevant part:\n\u201cUpon the notice of statutory summary suspension served under Section 11 \u2014 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11\u2014501, *** the hearing shall be conducted by the circuit court having jurisdiction.\u201d Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 2\u2014 118.1(b).\nInitially, we note that a petitioner seeking rescission of his summary suspension bears the burden of proceeding and the burden of proof. (People v. Joiner (1988), 174 Ill. App. 3d 927, 529 N.E.2d 268.) Once a hearing to rescind the suspension is requested, it must be held within 30 days of the request. This 30-day period is mandatory, the legislature having determined that this time period constitutes a prompt hearing under the due process requirements. (In re Summary Suspension of Driver\u2019s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.) Failure to hold a hearing within the required 30 days violates the driver\u2019s due process rights. The only appropriate remedy is to require the rescission of his suspension. Trainor, 156 Ill. App. 3d at 922, 510 N.E.2d at 617.\nIn the instant case, it is undisputed that the petitioner did not receive a hearing within the 30-day period. The State argues, however, that the burden was on the petitioner to secure a hearing date. We do not agree.\nThe petitioner filed the petition to rescind his summary suspension with the clerk of the circuit court and the trial court. A copy was also sent to the State\u2019s Attorney\u2019s office. The sufficiency of the petition is not in dispute. We find that the petitioner met the initial filing requirements.nf section 2 \u2014 118.1 and thus fulfilled his burden of proceeding with the petition. Once those requirements were met, the burden shifted to the State to ensure that a hearing date was set within 30 days. The State did not meet its burden. Therefore, the failure to hold a hearing within 80 days violated the petitioner\u2019s due process rights and the trial court had no alternative but to rescind his summary suspension.\nAccordingly, the judgment of the circuit court of Peoria County is affirmed.\nAffirmed.\nGORMAN and SCOTT, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Kevin W. Lyons, State's Attorney, of Peoria (Gary E Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.",
      "Kim Kelly, of Peoria, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. ROBERT A. JOHNSON, Petitioner-Appellee.\nThird District\nNo. 3\u201490\u20140125\nOpinion filed September 7, 1990.\nKevin W. Lyons, State's Attorney, of Peoria (Gary E Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nKim Kelly, of Peoria, for appellee."
  },
  "file_name": "0809-01",
  "first_page_order": 831,
  "last_page_order": 834
}