{
  "id": 3316948,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTO NIKIC, Defendant-Appellee",
  "name_abbreviation": "People v. Nikic",
  "decision_date": "1978-12-04",
  "docket_number": "No. 78-136",
  "first_page": "22",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    {
      "cite": "19 Ill. App. 3d 794",
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        2695904
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  "last_updated": "2023-07-14T21:04:20.946597+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. ANTO NIKIC, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThis is an appeal by the State from the ruling of the circuit court of McHenry County finding no probable cause to suspend the defendant\u2019s driver\u2019s license.\nThe defendant was arrested for driving while intoxicated. He was taken to the police station and requested to take a breathalyzer test but refused to do so. He was given notice pursuant to section 11 \u2014 501.1 of the Illinois Vehicle Code (implied consent statute) (Ill. Rev. Stat. 1977, ch. 95%, par. 11 \u2014 501.1), which provides that the arresting officer shall file with the circuit court clerk, following a person\u2019s refusal to take the test, a sworn statement identifying the person refusing to take such test and the time and place where such person is believed to have been driving while intoxicated. The statute further provides:\n\u201cThe Clerk shall thereupon notify such person in writing that his privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, he shall request in writing a hearing thereon. If such person fails to request a hearing within such 28 day period, the Clerk shall so notify the Secretary of State who shall automatically suspend such person\u2019s driver\u2019s license * * * .\u201d\nFollowing the defendant\u2019s refusal to take the breathalyzer test and his notice from the circuit court clerk of the consequences thereof the defendant failed to request a hearing during the 28-day period specified in the statute. The notice was given to him on August 22, 1977, by the circuit court clerk and the defendant did not request a hearing until October 14, 1977. The trial court set the hearing for November 23,1977. At that time the State\u2019s Attorney appeared and objected to the hearing on the ground that the 28 days specified in the statute having expired, the trial court no longer had jurisdiction to hold a hearing on the question of suspending the defendant\u2019s driver\u2019s license. It appears, however, from the report of proceedings that by some oversight the notice had not been sent to the Secretary of State by the circuit court clerk as specified in the statute and the driver\u2019s license, which is normally sent to the Secretary of State along with such notice, was still in the possession of the circuit court clerk on the date of the hearing.\nSince the notice had not been sent and the court still retained possession of the defendant\u2019s driver\u2019s license, the court ruled that it still retained jurisdiction to conduct a hearing. The State\u2019s Attorney, after arguing his position as to the question of jurisdiction, stood on his argument and refused to go forward with any evidence. The court thereupon found there was no probable cause to suspend the defendant\u2019s driver\u2019s license.\nThe only question before us is whether the quoted statute is- self-executing so as to bring about a suspension of the defendant\u2019s driver\u2019s license by the expiration of the 28-day period set out in the statute, or whether such license is not suspended until the Secretary of State acts to do so pursuant to notice from the circuit court clerk.\nWe believe the sounder view is that taken under similar circumstances in People v. Liddell (1974), 19 Ill. App. 3d 794. In that case the defendant requested a hearing on suspension of his driving privileges only 2 days after the 28-day period had run. The defendant had been arrested on December 9 and refused to take the breathalyzer test at that time. On December 12 the circuit court clerk gave him notice, as per statute, as to the consequences of his refusal. The 28-day period expired on January 9. Thereafter, on January 11, the defendant requested and was granted a hearing by the circuit court, which was set for January 14. Meanwhile, on January 12, the circuit court clerk sent the notice to the Secretary of State notifying him of the defendant\u2019s refusal to take the breathalyzer test and his failure to make timely request for a hearing. On January 14 the defendant appeared in court and upon his explaining to the court that he had been under a misapprehension as to the date he was required to request a hearing, the court vacated the suspension of his driver\u2019s license.\nOn appeal by the State the appellate court held the trial court was without power to vacate the suspension, after the 28-day period had expired. The court said:\n\u201cWe initially note that it is clear that the statute provides that where there has been no timely request for a hearing concerning the refusal of a breathalyzer test, the Secretary of State \u2018shall automatically suspend\u2019 the license of the person refusing the test (sec. 11.501.1(d)). In construing statutes, courts have generally held the word \u2018shall\u2019 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 \u2018shall\u2019 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 \u2018shall\u2019 file a sworn statement, that the clerk \u2018shall thereupon\u2019 notify the person refusing the test, and that the clerk \u2018shall\u2019 notify the Secretary of State, who \u2018shall\u2019 automatically suspend the license, compels the conclusion that the word \u2018shall\u2019 was intended by the legislature to be mandatory.\u201d 19 Ill. App. 3d 794, 796.\nFollowing this view, we are of the opinion that the circuit court had no authority to conduct a hearing pursuant to defendant\u2019s request, made after the expiration of the 28-day period specified in the statute. Defendant, by not demanding a hearing within 28 days, has waived his right to a hearing and the clerk, by his failure to carry out his duty, cannot extend the 28 days. Also, the 28 days having expired, by operation of section 11 \u2014 501.1 of the Illinois Vehicle Code, the defendant had already had his driving privileges suspended and the court was without jurisdiction to decide the question.\nThe judgment of the circuit court of McHenry County is therefore reversed and the cause remanded with directions to require the circuit court clerk to notify the Secretary of State in accordance with the provisions of section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95K, par. 11 \u2014 501.1).\nJudgment reversed and remanded with directions.\nNASH and WOODWARD, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "William J. Cowlin, State\u2019s Attorney, of Woodstock, for the People.",
      "No appearance for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTO NIKIC, Defendant-Appellee.\nSecond District\nNo. 78-136\nOpinion filed December 4, 1978.\nWilliam J. Cowlin, State\u2019s Attorney, of Woodstock, for the People.\nNo appearance for appellee."
  },
  "file_name": "0022-01",
  "first_page_order": 44,
  "last_page_order": 47
}