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Illinois Supreme Court holds that rescission of a Statutory Summary Suspension is not retroactive

As a result of an Illinois Supreme Court ruling, a driver who is charged with driving while suspended based upon a Statutory Summary Suspension that is later rescinded can be convicted of the driving while suspended charge. Defendant David K. Elliott was arrested for Driving Under the Influence (DUI) on August 26, 2009. (625 ILCS 5/11-501)  At that time, the arresting officer also served Defendant with a notice of Statutory Summary Suspension (SSS) of his driver’s license and driving privileges. (625 ILCS 5/11-501.1) In accordance with that same provision, the SSS became effective forty-six days later, or October 11, 2009.

On September 1, 2009, within the ninety days allotted by law in which to do so (625 ILCS 5/2-118.1), the Defendant filed a petition to rescind the SSS.  However, because the SSS is “summary” in nature, the mere filing of the petition to rescind does not stay its commencement.  (People v. Trainor, 156 Ill. App. 3d 918, 109 Ill. Dec. 746, 510 N.E.2d 614 (4 Dist. 1987))

On October 13, 2009, two days after the SSS commenced, the Defendant was arrested for driving on a suspended license in violation of 625 ILCS 5/6-303.  On October 19, 2009, the trial judge entered an order granting the Defendant’s petition to rescind the SSS.

On October 23, 2009, the Illinois Secretary of State entered an order of rescission of the SSS, thereby clearing the suspension off the Defendant’s driving record.  Subsequently, the Defendant moved to dismiss the driving while suspended charge, arguing that because the SSS had been rescinded, the driving while suspended charge lacked a legal basis.

The Defendant’s position was that since the rescission order was tantamount to the judge finding that the suspension was not valid, he could not be charged with violating an invalid suspension.  In effect, the Defendant’s theory was that the rescission order should be given retroactive application.  The outcome of the case hinged upon the meaning of “rescind”.

In the trial court, the Defendant lost and was convicted of driving while suspended. As a side note, as of January 1, 2009, Illinois began recognizing the Monitoring Device Driving Permit (MDDP).  (625 ILCS 5/6-206.1)  A motorist who is eligible for an MDDP and is charged with driving during an SSS without an MDDP is subject to a felony charge if the prosecutor decides to pursue it. (625 ILCS 5/6-303)

The Fifth District Appellate court reversed the trial court, agreeing with the Defendant that since the suspension was invalid, driving during the suspension was not illegal.  The appellate court treated the suspension as though it had never happened. The state appealed to the Supreme Court, which while not required to do so, agreed to take the case.

As framed by the Supreme Court, the question was one of statutory construction, i.e., what is the meaning of “rescind”?  Because the construction of a statutory term raises a question of law, the Court’s review was de novo, the import of which is that a court of review need not give any deference to the decisions of  lower courts in a de novo review.  (People v. Elliott, 2014 IL 115308, ¶ 11)

The Court began by noting that the term has no widely-recognized meaning.  Next, the opinion turned to both the lay dictionary definitions, as well as Black’s Law Dictionary.  In both instances, the Court found there was no definitive answer.

The court also reviewed the Illinois statutes. There is no definition of “rescind” in the Vehicle code.  And in various contexts, when the Legislature has used the term, it has been given both retroactive and prospective meaning.

For instance, under a provision of the Life Care Facilities Act (210 ILCS 40/5b), “rescind” has a retroactive meaning. Yet the Code of Criminal Procedure of 1963 uses it in a manner that makes it clear it is to have prospective application only. (725 ILCS 5/108A–1)

As a result, the Court turned to a legislative-intent analysis. It was the opinion of the Court that giving the rescission prospective application would be consistent with the policy behind the SSS law.

An SSS protects the public from impaired drivers and swiftly removes them from the roadways.  This policy is furthered with prospective application because it tells a driver that if he is caught driving during an SSS, he faces criminal penalties which makes him less likely to drive. If the penalties were retrospective, a potentially dangerous driver would be more willing to gamble on driving during the suspension in the hopes that the suspension would eventually be rescinded.  Id. at § 17,18.

As a result, the Supreme Court reversed the decision of the appellate court and reinstated the Defendant’s conviction.

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