SIXTH DIVISION Opinion filed: May 20, 2016

No. 1-15-1799 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. YB429483 ) MARIO GUILLERMO, ) Honorable ) Richard Schwind, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Delort concurred in the judgment and opinion.

OPINION

¶1 The defendant, Mario Guillermo, appeals the circuit court's order denying his petition to

rescind the statutory summary suspension of his driving privileges filed pursuant to section 2-

118.1(b) of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118.1(b) (West 2014)). On appeal,

the defendant argues that: (1) the circuit court lacked subject matter jurisdiction; (2) the court

erred by holding a hearing on his petition to rescind because the matter was not ripe for

adjudication; and (3) the hearing on his petition to rescind was untimely because it took place

more than 30 days after he filed the petition. For the reasons that follow, we affirm. No. 1-15-1799

¶2 The facts relevant to resolving this appeal are as follows. On January 3, 2015, the

defendant was arrested for driving under the influence of alcohol (DUI) (625 ILCS 5/11-

501(a)(2) (West 2014)). According to the arresting officer's sworn report, the defendant was

served with "immediate Notice of Summary Suspension/Revocation of driving privileges"

because he "refused to submit to or failed to complete testing." In bold print, the notice stated

that the defendant's driving privileges would be summarily suspended "on the 46th day following

issuance of this notice" and that he had a right to a hearing to contest the suspension. The notice

also stated that, if the defendant wished to contest the suspension, he had to file a petition to

rescind the suspension within 90 days after the officer served him with the notice.

¶3 At the first scheduled court hearing, on January 15, 2015, the defendant filed a petition to

rescind the suspension of his driving privileges. On February 6, the defendant and the State

agreed to continue the matter to February 13. On February 13, the court continued the matter

because the Secretary of State had not filed a confirmation of suspension with the court as

required under section 11-501.1(h) of the Code (625 ILCS 5/11-501.1(h) (West 2014)).

¶4 At the next scheduled hearing date of February 18, 2015, both the State and the defendant

appeared and answered ready. However, before any witnesses were sworn, the defendant moved

to rescind the suspension, arguing that he had not been afforded a hearing within the 30-day

period as set forth in section 2-118.1(b) of the Code (625 ILCS 5/2-118.1(b) (West 2014)). The

defendant asserted that his petition was filed 33 days earlier, on January 15, 2015. The court

denied the motion, noting that the defendant agreed to continue the matter from February 6 to

February 13, and any delay in holding the hearing was, therefore, attributable to him.

¶5 After the circuit court denied the defendant's motion, the defendant pointed out that the

Secretary of State had not filed a confirmation of suspension with the court. He asserted that the

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court did not have subject matter jurisdiction to hold a hearing on his petition because, without a

confirmation from the Secretary of State, there was no suspension for the court to rescind and the

matter was not ripe for adjudication. The court disagreed, and the matter proceeded to a hearing.

Following the presentation of witnesses and arguments by counsel, the defendant's petition to

rescind was denied.

¶6 Thereafter, the Secretary of State filed with the court a "confirmation of statutory

summary suspension" which confirmed that the defendant's "Illinois driver's license *** and

[his] privilege to operate a motor vehicle or to obtain a driver's license in Illinois are suspended

on the date shown above." The date shown above states: "12:01 a.m. on 02-18-15." The

confirmation letter is undated and contains no file stamp.

¶7 On March 20, 2015, the defendant filed a motion to reconsider the denial of his petition

to rescind, which the circuit court denied. This appeal followed.

¶8 We first address the defendant's contention that the circuit court lacked subject matter

jurisdiction. Subject matter jurisdiction refers to the power of a court "to hear and determine

cases of the general class to which the proceeding in question belongs. [Citations]." (Internal

quotation marks omitted.) People v. Castleberry,

. Generally speaking,

"[t]o invoke a circuit court's subject matter jurisdiction, a petition or complaint

need only 'alleg[e] the existence of a justiciable matter.' [Citation.] Indeed, even

a defectively stated claim is sufficient to invoke the court's subject matter

jurisdiction, as '[s]ubject matter jurisdiction does not depend upon the legal

sufficiency of the pleadings.' [Citation.] In other words, the only consideration is

whether the alleged claim falls within the general class of cases that the court has

the inherent power to hear and determine. If it does, then subject matter

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jurisdiction is present." (Emphasis in original.) In re Luis R.,

(2010).

¶9 Here, the defendant filed a petition pursuant to section 2-118.1(b) of the Code (625 ILCS

5/2-118.1(b) (West 2014)), seeking to rescind the statutory summary suspension of his driving

privileges. The defendant's petition clearly alleged the existence of a justiciable matter and the

circuit court had inherent power to hear and determine whether the defendant was entitled to

rescind the summary suspension of his driving privileges. See People v. Keegan,

(2002) (a petition to rescind presents a justiciable matter over which the circuit

court has original subject matter jurisdiction). Thus, the defendant's claim that the circuit court

lacked subject matter jurisdiction is without merit.

¶ 10 The defendant next contends that the circuit court erred in holding a hearing on his

petition to rescind because the matter was not ripe for adjudication. He asserts that, under

section 11-501.1(h) of the Code (625 ILCS 5/11-501.1(h) (West 2014)), the Secretary of State

was required to confirm the effective date of the summary suspension of his driving privileges by

mailing a notice to the court of venue. He maintains that, prior to the confirmation of

suspension, the Secretary of State had done nothing to restrict his driving privileges and, as a

result, there was no suspension for the court to rescind.

¶ 11 Before we begin our analysis, we will provide, as background, a short explanation of the

statutory scheme that pertains to those who are arrested for driving under the influence of

intoxicants. In Illinois, when a motorist is arrested for DUI, the arresting officer may request

that he submit to a chemical test. 625 ILCS 5/11-501.1(a) (West 2014). If the defendant refuses

to submit to chemical testing, tests above the legal alcohol concentration limit, or tests positive

for an intoxicating substance, the officer must give the motorist a notice of summary suspension.

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625 ILCS 5/11-501.1(d), (f) (West 2014). The officer must also submit a sworn report, detailing

the results of the test or the motorist's refusal to take it, to both the Secretary of State and the

circuit court of venue. 625 ILCS 5/11-501.1(d) (West 2014). The summary suspension of the

motorist's driving privileges automatically takes effect on the 46th day after the officer serves the

motorist with notice of the suspension. 625 ILCS 5/11-501.1(g) (West 2014); People v. Eidel,

(2001) ("section 11-501.1(g) is a self-executing provision").

¶ 12 Section 11-501.1(h) of the Code provides that:

"Upon receipt of the sworn report from the law enforcement officer, the

Secretary of State shall confirm the statutory summary suspension or revocation

by mailing a notice of the effective date of the suspension or revocation to the

[defendant] and the court of venue. *** However, should the sworn report be

defective by not containing sufficient information or be completed in error, the

confirmation of the statutory summary suspension or revocation shall not be

mailed to the person or entered to the record; instead, the sworn report shall be

forwarded to the court of venue with a copy returned to the issuing agency

identifying any defect." 625 ILCS 5/11-501.1(h) (West 2014).

¶ 13 Although motorists arrested for DUI are immediately subject to the statutory summary

suspension of their drivers' licenses, they are not left without recourse. Section 2-118.1(b) sets

forth a comprehensive procedure for motorists who seek a rescission of the summary suspension

of their drivers' licenses. 625 ILCS 5/2-118.1(b) (West 2014). Section 2-118.1(b) provides:

"Within 90 days after the notice of statutory summary suspension or revocation

served under Section 11-501.1, the person may make a written request for a

judicial hearing in the circuit court of venue. The request to the circuit court shall

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state the grounds upon which the person seeks to have the statutory summary

suspension or revocation rescinded. Within 30 days after receipt of the written

request ***, 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 or revocation. The hearings shall proceed in the

court in the same manner as in other civil proceedings." 625 ILCS 5/2-118.1(b)

(West 2014).

¶ 14 Because section 2-118.1(b) mandates that the circuit court conduct a hearing within 30

days after a petition to rescind is filed, and because the actual suspension of driving privileges

does not take effect until 46 days after the motorist is served with notice of the suspension, "the

hearing can be either pre- or post-suspension, and the timeliness of the review depends largely

upon the driver's diligence in filing a [petition to rescind]." People v. Esposito,

(1988).

¶ 15 It is within this framework that we consider the defendant's argument that his petition to

rescind was not ripe for adjudication. "A controversy is ripe when it has reached the point where

the facts permit an intelligent and useful decision to be made." People v. Ziltz,

,

(1983); see also Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC,

(2009) (ripeness is concerned with the fitness of the issue for judicial decision

at a particular point in time). Whether an actual controversy exists and is ripe for adjudication is

reviewed de novo. National City Corp. & Subsidiaries v. Department of Revenue,

(2006).

¶ 16 In the case at bar, the defendant was arrested for DUI and immediately served with notice

that his driving privileges would be summarily suspended for his failure to complete chemical

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testing. Since the summary suspension is "self-executing" and automatically takes effect on the

46th day following issuance of the notice (Eidel,

), there was nothing

hypothetical or abstract about the suspension which the defendant sought to have rescinded. The

suspension faced by the defendant was real and imminent and there is no need to speculate as to

the harm he would suffer once his suspension took effect. The defendant's petition to rescind did

not ask the court to pass judgment on mere abstract propositions of law, render an advisory

opinion, or give legal advice as to future events. Rather, he sought to stop the suspension of his

driving privileges from ever taking effect. The case was clearly ripe for a judicial determination

as the circuit court could immediately determine the parties' rights. The absence of a

confirmation of suspension is of no import, as it had no impact on the court's ability to grant

effectual relief.

¶ 17 The defendant argues, however, that without a confirmation of suspension issued by the

Secretary of State, there is no suspension to rescind. We disagree. As discussed above, section

11-501.1(g) is a self-executing provision under which a summary suspension automatically takes

effect 46 days after the officer serves the motorist with notice that his or her license is to be

suspended. By its confirmation, the Secretary of State was not actually suspending the

defendant's driver's license; rather, it was merely attesting to the effective date of the suspension.

See People v. Morales,

("The confirmation letter from the

Secretary of State was only that: a letter of confirmation.").

¶ 18 Moreover, the defendant's argument that the circuit court must wait for a confirmation of

suspension before holding a hearing on a petition to rescind, cannot be squared with the plain

and unambiguous language of sections 2-118.1(b) and 11-501.1(h) of the Code. As stated above,

section 2-118.1(b) mandates that a defendant be given a hearing on his petition to rescind within

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30 days after it is filed in the circuit court. See People v. Bywater,

(2006).

Nowhere in section 2-118.1(b) does it state that the court must wait for the Secretary of State's

confirmation. Similarly, while section 11-501.1(h) requires the Secretary of State to file a

confirmation of suspension with the court of venue, it does not, on its face, indicate the amount

of the time within which it must confirm the suspension. See People v. O'Neil,

(2002). Because there is no requirement that the Secretary of State file a confirmation

with the circuit court within a specific time period, we cannot conclude that the Secretary of

State's failure to send a prompt confirmation of the suspension prevented the circuit court from

holding a timely hearing on the defendant's petition to rescind. We could not hold otherwise

without impermissibly reading into the Code conditions the legislature did not include. People v.

McClure,

(2006) (courts must enforce statutes as written and may not read

into statutes exceptions, limitations, or conditions which the legislature did not express). In this

case, the Secretary of State's failure to promptly file a confirmation with the circuit court

amounts to a technical deficiency which was later cured. See People v. Badoud,

(1988); People v. Dominguez,

(2006) (the failure of an officer to

forward a copy of the sworn report to the circuit court is a technical deficiency which can be

cured).

¶ 19 In further support of his argument that a suspension may not be rescinded until it has

been confirmed by the Secretary of State, the defendant cites to People v. Madden,

(1995), and People v. Moreland,

. We are not persuaded.

¶ 20 In Madden,

, the defendant filed a petition to rescind his statutory

summary suspension on September 30, 1994. At an October 20, 1994 hearing, the circuit court

dismissed the petition on ripeness grounds, with leave to reinstate because the defendant's

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driving abstract did not indicate that a summary suspension was pending.

.

Thereafter, the defendant received a confirmation from the Secretary of State.

. He

reinstated his petition and moved to dismiss the summary suspension on grounds that more than

30 days had passed from the date of his initial petition. The circuit court denied the motion and

the defendant appealed. On appeal, the reviewing court reversed, noting that once a petition is

filed, a hearing must be held within 30 days, unless the delay is occasioned by the defendant.

There, the court determined that any delay in holding the hearing "was the result of inaction by

the [Secretary of State's] office rather than by the defendant."

. Since the delay in

holding the hearing was attributable to the State, the court held that the defendant's summary

suspension must be rescinded. In its closing remarks, the court added, "[a] suspension may not

be rescinded until it has been confirmed."

.

¶ 21 Similarly, in Moreland,

, the appellate court affirmed the

circuit court's order granting the defendant's petition to rescind, where the defendant was not

afforded a hearing within the 30-day period. Citing Madden, the court went on to state,

"[a]lthough we determine that defendant is entitled to the rescission of the suspension because he

was not given a hearing within 30 days after filing his petition, we agree with the trial court that,

without a confirmation of the suspension, there is not a suspension for the trial court to rescind."

Id. ¶ 9.

¶ 22 Because the decisions in Madden and Moreland turned on the issue of whether the

defendants were afforded timely hearings on their petitions to rescind, we believe that any

further statement by the court regarding whether a suspension may be rescinded absent a

confirmation by the Secretary of State is obiter dicta. See People v. Williams,

(2003) (obiter dicta are comments in a judicial opinion that are unnecessary to the

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disposition of the case and, as a general rule, are not binding as authority or precedent). The

statement that a suspension may not be rescinded until it has been confirmed was clearly

unnecessary to the outcome of Madden and Moreland and had no bearing on the ultimate

resolution of the cases—namely, whether any delays in holding the hearings were attributable to

the defendants. Additionally, we decline to follow the dicta in Madden and Moreland because,

as we discussed earlier in this opinion, a summary suspension is self-executing and automatically

takes effect 46 days after the officer serves the motorist with notice that his or her license is to be

suspended and is not dependent upon the issuance of a confirmation by the Secretary of State.

¶ 23 In sum, we conclude that the defendant's petition to rescind presented a controversy ripe

for adjudication, and the circuit court did not err in holding a hearing on the petition even though

it was not in receipt of the confirmation of suspension issued by the Secretary of State.

¶ 24 Next, the defendant argues that he was denied his right to a hearing within 30 days of

filing his petition to rescind. The 30-day period within which the court must hold a rescission

hearing commences on the date that the circuit court received the defendant's petition to rescind.

Bywater,

. "However, when any delay in holding the hearing is occasioned by

the defendant, that delay extends the 30-day period." (Emphasis added.) People v. Smith,

(1996) (citing People v. Schaefer,

(1993)). Thus, if the

defendant occasions any delay beyond the 30-day deadline he is not entitled to rescission based

on an untimely hearing so long as the hearing is held within 30 days of the filing of the petition

to rescind exclusive of any period of delay occasioned by the defendant. In re Summary

Suspension of Driver's License of Trainor,

(1987).

¶ 25 In the instant case, the defendant filed a petition to rescind in the circuit court on January

15, 2015. Pursuant to section 2-118.1(b), the rescission hearing had to be held within 30 days,

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which expired on February 14, 2015. However, the record reveals that, on February 6, 2015, the

defendant agreed to continue the matter to February 13, 2015, a delay which is attributable to

him. See Schaefer,

; People v. Reimolds,

(1982) (a

defendant is considered to have occasioned a delay when he agrees to a continuance). Although

neither party cites to any authority directly on point, we hold that the 7-day delay attributable to

the continuance agreed to by the defendant, which occurred within the 30-day period,

temporarily suspended the running of the period within which a hearing on the defendant's

petition to rescind had to be held. See People v. Kliner,

(1998) (for speedy

trial purposes, any period of delay occasioned by the defendant temporarily suspends the running

of the speedy-trial term until the expiration of the delay, at which point the period shall

recommence to run). As a result of the 7-day delay, the rescission hearing had to be held on or

before February 21, 2015. Because the hearing was held three days earlier, on February 18,

2015, the defendant was not entitled to a rescission of the statutory summary suspension on the

basis that he was not afforded a hearing within the 30-day period as required pursuant to section

2-118.1(b) of the Code.

¶ 26 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 27 Affirmed.

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