Virtually all DUI cases start with the issuance of a Notice of Statutory Summary Suspension. The arresting officer hands the defendant a gray sheet of paper which states that the defendant’s driver’s license will be suspended 46 days from the date of arrest. Many clients are understandibly upset that they will lose their license unless they are able to prove to a Judge: (1) they did not refuse chemical testing; (2) they were not read their warnings to motorist; (3) the officer did not have reasonable grounds to believe they were under the influence while driving; (4) they submitted to a test and the results did not yield grounds for suspension (e.g. blowing below .08); or (5) that the officer neglected to draft a DUI citation.
The law affords the client the opportunity to file a petition to rescind the summary suspension. However, the defendant is often not afforded a hearing on their petition to rescind until the first scheduled Court date. Therein lies the dilema. Supreme Court rule 504 allows the arresting officer to schedule the defendant’s first Court date up to 60 days after the arrest. The summary suspension kicks in 46 days after the arrest meaning that certain DUI defendants (in some cases innocent ones) have already lost their driver’s license for 14 days before they have the opportunity to see a Judge. The State can achieve technical statutory compliance by affording the defendant a hearing on the first scheduled Court date. However, the Illinois Appellate Court in People v. Miklos put their foot down and held that technical compliance with the statute was not sufficient where: (1) the defendant was not given a hearing within 30 days from the date of his request; and (2) the defendant had already been suspended for 8 days. People v. Milkos 393 Ill. App. 3d 205, 210 (3rd Dist 2009). The Milkos case opens the door for all defense attorneys to argue for rescission on due process grounds even where the state has complied with the mandate of the statute.
Contact Attorney David Meyerson at (847) 513-6600 with questions, or to schedule a FREE 15-minute consultation.