{
  "id": 2569680,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BERNARD A. GRESIK, Respondent-Appellant",
  "name_abbreviation": "People v. Gresik",
  "decision_date": "1990-11-08",
  "docket_number": "No. 1-88-2195",
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  "last_updated": "2023-07-14T21:56:36.258665+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BERNARD A. GRESIK, Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nDefendant, Bernard A. Gresik, appeals the trial court\u2019s denial of his motion seeking to have his petition to rescind a statutory suspension of his driving privileges sustained. Defendant contends that he was denied due process when the State failed to grant him a hearing on the petition to rescind the statutory summary suspension of his driving privileges within 30 days of his written demand.\nOn May 19, 1988, defendant was arrested and charged with driving under the influence of alcohol. According to the arresting officer\u2019s report, defendant either refused to submit to or failed to complete the breathalyzer test and his driving privileges were summarily suspended pursuant to the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 95x/2, par. 2 \u2014 118.1(b)). The arresting officer issued a citation to defendant which noted that defendant was to appear in court on June 28, 1988, six days before the summary suspension was to begin. Defendant was also notified that a statutory summary suspension of his driver\u2019s license was to become effective on July 4, 1988, 46 days after defendant\u2019s arrest. On May 23, 1988, defendant filed a written petition to suspend the statutory summary suspension. Defendant\u2019s petition noted that the court would hear arguments on the petition on June 22, 1988. On that date defendant answered ready for a hearing on the petition, but the State requested a continuance until June 28, 1988, i.e., the original hearing date set by the arresting officer. The trial court granted the continuance. On June 23, 1988, defendant filed a motion seeking to rescind the statutory suspension based on the State\u2019s failure to proceed with a hearing within 30 days from the filing of the petition. On June 28, 1988, after a hearing, the trial court denied defendant\u2019s motion. Rather than proceed on the petition to suspend the statutory summary suspension, defendant requested a continuance in order to appeal the trial court\u2019s denial of the motion.\nSection 2 \u2014 118.1(b) of the Illinois Vehicle Code states:\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 \u2014 501 ***, the hearing shall be conducted by the circuit court having jurisdiction.\u201d (Emphasis added.) 111. Rev. Stat. 1987, ch. 95x/2, par. 2\u2014 118.1(b).\nThe Vehicle Code expressly states that when an individual requests a hearing to have a statutory summary suspension rescinded, a hearing shall be conducted by the circuit court within 30 days after receipt of the request or the appearance date stated on the traffic citation.\nIn support of his argument, defendant relies on In re Summary Suspension of Driver\u2019s License of Trainor (1987), 156 Ill. App. 3d 918. In Trainor, defendant requested a hearing to rescind the statutory summary suspension of his driving privileges. The hearing date was timely set, but petitioner moved for substitution of judges. A new judge was appointed, but failed to hear petitioner within 30 days of petitioner advising the court that he had filed a petition and would like a prompt hearing. On review, the court found that when petitioner requests a hearing to rescind the statutory summary suspension, the hearing must be held within the time periods set by the statute; otherwise, defendant is entitled to rescission of summary suspension of his driver\u2019s license. Trainor, 156 Ill. App. 3d at 923.\nThe People argue that defendant\u2019s hearing to rescind the statutory summary suspension of his driving privileges was scheduled to be held within the time periods set forth in the Vehicle Code (111. Rev. Stat. 1987, ch. 95V2, par. 2 \u2014 118.1(b)) so that there was no violation of defendant\u2019s due process rights and, therefore, the suspension of defendant\u2019s driving privileges should be affirmed. We agree.\nIn support of its argument, the State cites People v. Webb (1989), 182 Ill. App. 3d 908, and People v. Gerke (1988), 123 Ill. 2d 85. In Webb, defendant was arrested on January 1, 1988, for driving under the influence of alcohol. The traffic citation, issued by the arresting police officer at the time of defendant\u2019s arrest, notified defendant to appear in court on February 5, 1988, to answer the charges contained in the citation. Defendant also received notice that his driver\u2019s license would be suspended beginning on February 16, 1988. On January 4, 1988, defendant filed a petition to rescind the statutory summary suspension of his driving privileges. The trial court conducted the hearing on defendant\u2019s petition on February 5, 1988, the appearance date contained in the citation. Defendant moved to dismiss the statutory suspension of his driving privileges, arguing that the hearing on his petition was not timely. The trial court granted defendant\u2019s motion, but the Illinois Appellate Court reversed and remanded the case and stated as follows:\n\u201c[W]e conclude that defendant was not deprived of his due process right to a timely hearing when the hearing he requested would have taken place on the first appearance date specified on the traffic ticket. Although this date fell 31 days after his written request for a hearing, it conformed with the alternate time provision set forth in the statute, and since it was scheduled to take place 11 days before the effective date of the statutory summary suspension of his driving privileges, we conclude that due process was not violated.\u201d Webb, 182 Ill. App. 3d at 913-14.\nIn Gerke, our supreme court stated that \u201c[a] hearing on the suspension,' when requested, is to be conducted \u2018[wjithin 30 days after receipt of the written request or the first appearance date of the Uniform Traffic Ticket.\u2019 [Citation.] The first appearance date on the Uniform Traffic Ticket must be not less than 14 days but within 49 days after the date of arrest, whenever practicable. [Citation.] *** [T]he summary suspension hearing will be held not later than three days after the suspension is to become effective. *** [A] three-day delay is not nearly long enough to implicate the due process clause.\u201d Gerke, 123 Ill. 2d at 91-92.\nIn the present case, the hearing on defendant\u2019s petition to rescind the statutory summary suspension was heard on June 28, 1988. Defendant\u2019s petition was denied and his summary suspension began six days later on July 4, 1988. We believe that the June 28, hearing satisfied the requirements of the Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 2 \u2014 118.1(b)) as well as due process requirements.\nFor the foregoing reasons, the decision of the circuit court of Cook County is affirmed.\nAffirmed.\nMcMORROW, P.J., and JIGANTI, J., concur.",
        "type": "majority",
        "author": "JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Gary W. Adair, of Chicago, for appellant.",
      "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Michael Latz, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BERNARD A. GRESIK, Respondent-Appellant.\nFirst District (4th Division)\nNo. 1\u201488\u20142195\nOpinion filed November 8, 1990.\nGary W. Adair, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Michael Latz, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "1079-01",
  "first_page_order": 1101,
  "last_page_order": 1104
}