{ "id": 258602, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIMBERLY LAGOWSKI, Defendant-Appellant", "name_abbreviation": "People v. Lagowski", "decision_date": "1995-03-10", "docket_number": "No. 1\u201493\u20141853", "first_page": "1012", "last_page": "1017", "citations": [ { "type": "official", "cite": "273 Ill. App. 3d 1012" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "510 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 918", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505645 ], "pin_cites": [ { "page": "923" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0918-01" ] }, { "cite": "525 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551043 ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0085-01" ] }, { "cite": "609 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "154 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820207 ], "weight": 16, "pin_cites": [ { "page": "256" }, { "page": "257" }, { "page": "257-58" }, { "page": "253" }, { "page": "253" }, { "page": "261" }, { "page": "262" }, { "page": "260" }, { "page": "261, 264" }, { "page": "261" }, { "page": "268-70" }, { "page": "270" }, { "page": "261" }, { "page": "270" }, { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0250-01" ] }, { "cite": "157 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 515, "char_count": 11764, "ocr_confidence": 0.768, "pagerank": { "raw": 1.3380943170102208e-07, "percentile": 0.6305861847544008 }, "sha256": "9e28e7e59975e761643d77fddf742e3cc8faf9c54084c50d386752056a19603f", "simhash": "1:98bac1d7dd5faaab", "word_count": 1964 }, "last_updated": "2023-07-14T20:25:46.120982+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIMBERLY LAGOWSKI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE T. O\u2019BRIEN\ndelivered the opinion of the court:\nDefendant, Kimberly Lagowski, appeals from an order of the circuit court which denied her motion to dismiss the summary suspension of her driving privileges. On appeal, she contends the circuit court erred in denying her motion because the hearing she requested was untimely held. This court initially affirmed the circuit court\u2019s decision in an unpublished order. (People v. Lagowski (1st Dist. 1994), No. 1 \u2014 93\u20141853 (unpublished order under Supreme Court Rule 23).) Our supreme court allowed defendant\u2019s petition for leave to appeal (People v. Lagowski (1994), 157 Ill. 2d 513) and subsequently ordered this court to reconsider our judgment in light of People v. Schaefer (1993), 154 Ill. 2d 250, 609 N.E.2d 329. We again affirm the circuit court\u2019s order.\nOn January 24, 1993, at 1:45 a.m., an Elk Grove police officer issued defendant traffic citations for improper lane usage, illegal transportation of alcohol, and driving under the influence of alcohol. After defendant declined to take a breath test, the officer issued a warning that her driving privileges would be suspended. The court appearance date listed on the citations was March 5, 1993. The Secretary of State sent defendant confirmation of the statutory suspension, indicating that it would take effect on March 11, 1993.\nOn January 29, 1993, defendant filed a petition to rescind the summary suspension and requested a hearing pursuant to section 2 \u2014 118.1(b) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1991, ch. 951/2, par. 1 \u2014 118.1(b).) On March 5, 1993, the first appearance date indicated on defendant\u2019s traffic citation, she appeared in court and moved to dismiss the statutory summary suspension on the ground that she had been denied due process of law when the rescission hearing she had requested was not held within 30 days of her request. The circuit court confirmed the summary suspension.\nDefendant claims section 2 \u2014 118.1(b) requires the circuit court to conduct a hearing within 30 days of her request. (See Ill. Rev. Stat. 1991, ch. 951/2, par. 2 \u2014 118.1(b).) The State maintains the statute requires a hearing either within 30 days of the defendant\u2019s request or on the first appearance date. The State insists the circuit court complied with the statute by holding the hearing on the latter date.\nThe statutory summary suspension is an administrative function of the Secretary of the State. (People v. Schaefer, 154 Ill. 2d at 256.) The hearing is a civil proceeding, separate and apart from the criminal hearing regarding the charge of driving while under the influence of alcohol. (People v. Schaefer, 154 Ill. 2d at 257.) In fact, th\u00e9 dismissal of the criminal charge does not result in the automatic rescission of the suspension. (People v. Schaefer, 154 Ill. 2d at 257-58.) Section 2 \u2014 118.1(b) provides in pertinent part that\n\"[u]pon the notice of statutory suspension ***, the person may make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket ***, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension.\u201d (Ill. Rev. Stat. 1991, ch. 951/2, par. 2 \u2014 118.1(b).)\nThe supreme court has held that section 2 \u2014 118.1(b) created two alternative dates for a hearing on a defendant\u2019s challenge to the summary suspension: (1) on the first court date set in the traffic citation issued to the motorist; or (2) within 30 days of a defendant\u2019s written request for a hearing on her petition to rescind. (People v. Schaefer, 154 Ill. 2d at 253, citing People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68.) The court recognized that the motion to rescind made on the court date set by the traffic citation could be oral or written. (People v. Schaefer, 154 Ill. 2d at 253.) However, once a motorist files a proper petition for the administrative hearing with the clerk of the appropriate circuit court, the 30-day statutory period commences. (People v. Schaefer, 154 Ill. 2d at 261.) The hearing must be held within 30 days of the filing \" 'unless delay is occasioned by the defendant.\u2019 \u201d (Emphasis in original.) (People v. Schaefer, 154 Ill. 2d at 262, quoting In re Summary Suspension of Driver\u2019s License of Trainor (1987), 156 Ill. App. 3d 918, 923, 510 N.E.2d 614.) If the hearing is not timely held, due process requires that the summary suspension of the motorist\u2019s driving privileges must be rescinded. People v. Schaefer, 154 Ill. 2d at 260.\nIn People v. Schaefer, the supreme court consolidated three cases involving defendants who had filed petitions for the judicial hearing to rescind the summary suspension. In each case, the hearing was held beyond the 30-day period mandated by statute, and, in each case but one, the court concluded that the untimely hearing failed to comport with due process. (People v. Schaefer, 154 Ill. 2d at 261, 264.) In the case involving defendant Jack Puckett, Puckett filed his petition and requested a hearing date from the clerk of the circuit court. However, the hearing was not set at that time. Rather, the clerk informed Puckett that the clerk\u2019s office would set the hearing and send out notice. No hearing was ever set, and after 30 days had passed, Puckett filed a motion to rescind the suspension of his driving privileges due to the lack of a timely hearing. The circuit court granted the motion. The supreme court upheld the dismissal, concluding\n\"that the 30-day period [applicable to petitions to rescind statutory summary suspension of driver\u2019s license] commences on the date of the filing of a proper petition to rescind in the circuit court of venue, with service on the State, in accordance with the rules of this court. The burden to set the court hearing date would then shift to the State.\u201d (Emphasis added.) People v. Schaefer, 154 Ill. 2d at 261.\nIn the case of defendant Harold Schaefer, in which the summary suspension was upheld, the court held that Schaefer had not complied with all the requirements of the statute and had occasioned the delay. (People v. Schaefer, 154 Ill. 2d at 268-70.) Specifically, Schaefer filed his petition to rescind the statutory suspension on October 5, 1989. Fifteen days later, Schaefer filed a notice of motion which indicated several motions, including the petition to rescind the suspension, would be called for a hearing on October 31, 1989.\nAt the hearing held on that date, the circuit court noted all of defendant\u2019s motions, but did not mention the petition to rescind. The prosecutor specifically asked if such a petition was before the court. The circuit judge stated that she did not see a petition in the file. Schaefer\u2019s attorney did not inform the court to the contrary, and the matter was continued until November 16, 1989. Defendant later advanced the hearing to November 14, 1989. At the hearing, Schaefer did not present his petition nor did he request a ruling on it. At the conclusion of the November 14 hearing, the matter was continued to December 4, 1989, with the agreement of the parties. On that date, defense counsel failed to appear, and the court continued the case to January 3, 1990. On December 11, 1989, Schaefer appeared before the court and moved for the rescission of the suspension for lack of a timely hearing. The circuit court granted the motion. The supreme court affirmed the appellate court\u2019s reversal because defendant\u2019s conduct in failing to apprise the circuit court of the petition\u2019s filing and in agreeing to the continuances caused the delay. People v. Schaefer, 154 Ill. 2d at 270.\nIn the present case, defendant filed a written petition to rescind the summary suspension of driving privileges with the clerk of the circuit court of venue well before the date listed on the citations as the first court appearance. However, defendant\u2019s \"Notice of Motion\u201d and \"Proof of Service\u201d state:\n\"PLEASE TAKE NOTICE that on March 5, 1993, at 9:00 A.M. or thereafter as counsel may be heard, I shall appear before the Honorable Presiding Judge, in Room 105, Third District, in the Circuit Court of Cook County, Rolling Meadows, Illinois, and then and there appear for a hearing on the attached Petition to Rescind Statutory Summary Suspension, a copy of which is served upon you herewith.\n* * *\nPROOF OF SERVICE\nI, [attorney], certify that I served this Notice by depositing same in the U.S. Mail, on January 30, 1993, with proper postage prepaid.\u201d (Emphasis added.)\nThus, the hearing was set for the first appearance date listed on defendant\u2019s traffic citation \u2014 March 5. That date, of which defendant here complains, was elected by defendant herself. The State could not have undertaken its burden of scheduling the hearing (People v. Schaefer, 154 Ill. 2d at 261) in this case because defendant had done so. We do not interpret People v. Schaefer to place an unconditional burden upon the State to set a hearing date within 30 days of receipt of the motion where the defendant herself notices the petition for a hearing on a date beyond the 30-day period. From all appearances, defendant\u2019s \"Notice of Motion\u201d implies that she willingly had elected the date of the first court appearance which is allowed under section 2 \u2014 118.1(b) even though it was beyond the 30-day requirement. Thus, it appeared that she had abandoned her right to the earlier date which section 2 \u2014 118.1(b) permits. This fact, in our opinion, makes defendant\u2019s case more analogous to that of defendant Schaefer than to that of defendant Puckett in People v. Schaefer. Here, it was defendant\u2019s own conduct in electing the March 5 date which caused the hearing to be held more than 30 days after the petition was filed. If the State\u2019s burden to set a date is unconditional, the supreme court would not have recognized an exception where a defendant\u2019s conduct \"contributed to the delay.\u201d People v. Schaefer, 154 Ill. 2d at 270.\nDefendant additionally argues that the petition filed is a mere form supplied by the circuit court clerk and that defendant was \"not free to elect or select any date but must by circuit court rule set out the date assigned by the police officer.\u201d Nothing in the record supports this argument. To the contrary, the instructions at the bottom of the form petition state in part: \"The hearing may be conducted upon a review by the court of the law enforcement officer\u2019s own official reports; provided however, that you may subpoena the arresting officer if you so desire.\u201d (Emphasis added.) This language clearly indicates that a defendant is not bound to select the date assigned by the arresting officer, but may choose any date and may subpoena the arresting officer if the defendant so chooses.\nFor this reason, the circuit court\u2019s order is affirmed.\nAffirmed.\nGORDON and McNULTY, JJ., concur.\nWe note that Schaefer also failed to file a proper petition to rescind the statutory summary suspension because it did not contain a certificate of service in accordance with Supreme Court Rules 11 and 12. People v. Schaefer, 154 Ill. 2d at 268.\nWe distinguish this case from a situation where a defendant files a petition with an attached proof of service, but no notice of motion is included.", "type": "majority", "author": "JUSTICE T. O\u2019BRIEN" } ], "attorneys": [ "Joseph K. Luby and Thomas C. Brandstrader, both of Mount Prospect, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIMBERLY LAGOWSKI, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201493\u20141853\nOpinion filed March 10, 1995.\n\u2014 Modified on denial of rehearing July 21, 1995.\nJoseph K. Luby and Thomas C. Brandstrader, both of Mount Prospect, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1012-01", "first_page_order": 1032, "last_page_order": 1037 }