Kevin A. Chrzanowski

Monday, March 20th, 2017

Federal Appeals Court Issues Decision Regarding Jail Underwear Policy

In Mulvania v. Sheriff of Rock Island County, the United States Court of Appeals for the Seventh Circuit was asked by the named plaintiff and ten additional female detainees to review the Rock Island Sheriff’s policy requiring female detainees to wear white underwear during their time in detention. The United States District Court for the Central District of Illinois granted summary judgment in favor of the defendants. The Seventh Circuit reversed the grant of summary judgment.

The Rock Island County Sheriff’s policy required detainees with colored underwear to remove their colored underwear upon admission to the jail and either purchase white underwear from the jail’s commissary, contact family members to obtain white underwear, or wear no underwear during their detention. The Sheriff’s justification for the policy was to prevent detainees from extracting ink from colored underwear to be used in making tattoos. The Sheriff, however, did not identify any instances of ink from colored underwear being used to make tattoos.

The Court of Appeals analyzed the claims of the detainees under the Fourteenth Amendment instead of the Eighth Amendment, which prevents cruel and unusual punishment, citing that detainees are not convicted prisoners. As the Court indicated, “the Fourteenth Amendment’s Due Process Clause prohibits holding pretrial detainees in conditions that ‘amount to punishment.’” A pretrial condition is considered “punishment” if it is imposed for the purpose of punishment or it is not reasonably related to a legitimate governmental interest. The Court noted that the Sheriff’s security concern justification was undermined by the fact that the Sheriff often did not enforce the policy. The Court’s opinion stated that even if the policy was found to be rationally related to a legitimate governmental interest, the harm to the individual dignity of detainees might be excessive in relation to the governmental interest. As a result, the Seventh Circuit Court of Appeals reversed the summary judgment finding in favor of defendants and the case was remanded for further proceedings.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Tuesday, September 27th, 2016

New Law Affects Municipal Zoning and School Districts

Recently, the Illinois General Assembly’s response to Gurba v. Community High School District No. 155 was passed as Public Act 099-0890. This law became effective immediately upon the signature of the Governor. Under the new law, a school district and its board are subject to any valid local government zoning ordinance or resolution that applies where the building, structure, or site is located. The goal of the new law is to both streamline and to reduce the financial and administrative burdens of the application process.

The law provides several actions that a municipality can take to streamline and reduce the financial and administrative burden on a school district. First, a municipality should reduce the application fees associated with a school district application to a point where they reflect the actual cost associated with reviewing and processing the application. Second, the municipality should limit the number of times that the school district must amend its site plans and reduce the number of copies that must be submitted in order to process the application. The law does, however, make it clear that a municipality is not limited to taking only these actions in order to achieve the mandate of the law. Lastly, the municipality must expedite the zoning review process in order to render a decision within 90 days from the date that a completed application is submitted.

As one can see, while the law imposes requirements on municipalities, the actions that a municipality must take in order to comply with these requirements are largely undefined. As a result, it is important that a municipality take a proactive approach to the new law and consult with their legal counsel to ensure that they develop an appropriate procedure to process school district zoning applications in compliance with the requirements of the new law.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, March 30th, 2016

New PAC Opinion Stands as a Valuable Reminder to All Public Bodies

On March 25, 2016, the Illinois Attorney General’s Office handed down Public Access Opinion 16-003 finding that Harvey School District 152 violated section 3(f) of FOIA (“Act”) by failing to respond to a FOIA request submitted to the District. While this opinion does not establish a new precedent in terms of FOIA interpretation, it highlights the importance of properly counting the time by which a response is due and the requirement that a public body must respond to a request.

On December 10, 2015, a four-part FOIA request was submitted to the District seeking emails for particular school employees, cell phone information, text messages, and employment related documents. On December 18, 2015, the district responded to the requestor via email by attaching a letter to the email acknowledging its receipt of the request on December 11, 2015, and extending the time period for its response an additional 5 days to December 29, 2015. On January 27, 2016, the requestor filed a Request for Review with the Public Access Bureau alleging that the District failed to respond to the request. On February 1, 2016, the Public Access Bureau sent correspondence to the District requesting the District to notify the Bureau whether it received and responded to the request and if it had not yet responded, to do so and provide a copy of its response to the Bureau. The District did not respond to the Bureau’s February 1, 2016, correspondence. On February 18, 2016, a second correspondence was sent to the District requesting the status of the District’s response to the request. As of the date of the Public Access Opinion, no response was received by the Bureau regarding the status of the District’s response to the FOIA request. 

The first issue addressed in the opinion is the proper calculation of the 5 business day extension period provided in the Act. In this case, the District improperly extended the deadline 6 days to December 29, 2015. The District properly excluded weekends and Christmas as business days within which it was obligated to respond, however, the District’s response was due by the end of business on Monday, December 28, 2015. This miscalculation brings to the forefront the proper calculation of time within which there must be a response to a FOIA request. It is important to take note that the Act requires a response within 5 business days, unless this time period is extended by an additional 5 business days from the original due date. It is clear that weekends and state holidays are excluded under the Act and are therefore not considered “business days.” In this case, the opinion does not address whether the District offices were open or closed on December 28, 2015 following the Christmas holiday. It is advisable that a public body treat any day which is not a weekend date or a state holiday as a “business day” for purposes of calculating the appropriate time to respond to a FOIA request. 

The second issue addressed in the opinion is the District’s failure to respond to the FOIA request.  The opinion states that a complete failure to respond violates the Act. As a result, the District was ordered to provide all records responsive to the request, subject only to permissible redactions allowed under the Act. Additionally, the District was ordered to issue a denial letter in compliance with section 9(a) of the Act for any records that it deemed exempt from disclosure. This opinion makes it clear that an outright failure to respond to a request within the time limits set forth in the Act will leave the public body in no better of a position than it was upon receiving the original FOIA request. As a result, a public body must timely respond to a FOIA request to avoid a clear violation of the Act.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, January 20th, 2016

Illinois Legislature Modifies Driving Restrictions on DUI Offenders

The State legislature took significant strides this past legislative session to modify driving restrictions placed on individuals who have been arrested for a DUI and those that have been convicted of multiple DUI offenses. This past session saw the legislature grant repeat offenders the ability to obtain a restricted driving permit after 4 DUI convictions where the old law had disqualified these individuals from receiving license privileges for life. In addition to removing the lifetime ban, the legislature eased the 30 day hard suspension period for DUI offenders that qualify for the installation of the breath alcohol interlock device (BAID).

Public Act 99-0290 became effective on January 1, 2016, and this law brought with it some relief for individuals who have had 4 or more DUIs on their driving record. Although the perception may be that this new law will put many unsafe drivers back onto the road, the legislature put in place significant qualifications required to both obtain and keep this license. Under the old version of the law, a fourth or subsequent offender was not allowed to apply to the Illinois Secretary of State to regain any driving privileges and was considered banned for life from obtaining a license. Public Act 99-0290 seeks to alleviate the harshness of the lifetime ban against the need of repeat offenders to work and support themselves and their families with the need to monitor these high-risk drivers. Under the new law, an individual may apply to the Illinois Secretary of State for a restricted driving permit (RDP) after the later of 5 years from the driver’s most recent license revocation or 5 years from the driver’s release from prison resulting from a conviction on the most recent offense. The Illinois Secretary of State conducts a formal hearing on the application and the applicant must demonstrate that they have had a minimum of 3 years of uninterrupted abstinence from alcohol or illegal drugs, that they have successfully completed a rehabilitative program, and that they are involved in ongoing rehabilitative treatment through a properly licensed treatment provider.

The law specifically prohibits individuals from obtaining an RDP with more than one conviction for violations of paragraphs 3, 4, and 5 of 625 ILSC 5/11-501. These sections prohibit driving under the influence of an intoxicating compound, drug, or combined influence of alcohol and a drug or intoxicating compound. If an individual is granted an RDP, the individual can only operate a vehicle equipped with a BAID during the restricted driving times allowed in the permit. If a permit holder operates a vehicle without a BAID device the Secretary of State can revoke or modify the conditions of the permit. A conviction for DUI subsequent to obtaining an RDP will result in the revocation of the RDP and the individual will be banned for life from obtaining an RDP.

In addition to passing legislation designed to grant repeat offenders relief, the legislature passed Public Act 99-0467 which removes the 30-day hard suspension for DUI offenders that qualify for the monitoring device driving permit (MDDP). Under the old law, an individual’s suspension would go into effect 46 days from the date of their receipt of the notice of summary suspension, and they would not be able to obtain the MDDP for the first 30 days of their suspension. As you can imagine, this 30-day hard suspension brought with it significant collateral consequences such as the loss of employment and an inability to drive legally to perform everyday tasks such as attend a doctor appointment or go to the grocery store. Under the new law, an individual who qualifies for an MDDP will not face the 30 day hard suspension, and they should see no lapse in their ability to drive so long as they obtain the permit and install the BAID device in their vehicle.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, May 6th, 2015

Village of Palatine’s Disclosure of Personal Information Held to Be Permissible

The Seventh Circuit Court of Appeals recently upheld the District Court’s judgment in favor of the Village of Palatine in Senne v. Village of Palatine. In Senne, a class of plaintiffs alleged that the Village of Palatine’s use of information on parking tickets placed upside down on a vehicle’s windshield constituted an impermissible disclosure of personal information in violation of the Driver’s Privacy Protection Act (DPPA). The information contained on the Village’s citations included the registered owner’s name, full address, driver’s license number, date of birth, sex, height, and weight.

The first time that the case came before the Seventh Circuit Court of Appeals, the Court ruled that the information on the Village’s ticket and the placement of the ticket on the windshield face down constituted a “disclosure” under the DPPA. The case was remanded to the District Court for a determination as to whether the information disclosed by the Village came with any of the permissible uses provided in the DPPA. The District Court held, based solely on the deposition testimony of the Village’s Police Chief, that the information disclosed on the citations was permissible, and Senne appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit Court of Appeals’ review consisted of examining the reasons for disclosure offered by the Village’s Police Chief. The DPPA allows for the disclosure of personal information for “use in connection with any civil, criminal, administrative, or arbitral proceeding in a Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.” Additionally, the DPPA allows for the disclosure of personal information for “use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.”

The Village Police Chief testified that the information contained on a parking ticket increases the likelihood that a ticket will be paid because the driver or owner of the vehicle realizes that the police know the person’s identity and that they will have no difficulty in locating the driver or owner. The Police Chief also testified that the use of the personal information on the ticket alerts the driver to the information of the individual that will be responsible for payment of the ticket and this encourages the driver of the ticket to pay the ticket instead of the innocent owner. The Police Chief also stated that the information contained on the ticket can be used by command staff to determine if a ticket was issued in error to an out of town visitor thus warranting that the ticket be voided. Additionally, the personal information contained on the ticket allows drivers to use the ticket as a form of identification in the event that they are stopped by a police officer for a traffic violation and they do not have their driver’s license on them. Lastly, the Police Chief testified that placing personal information on the ticket encourages drivers to correct errors in the Village’s motor vehicle records such as the proper owner of the vehicle or the registered address for the vehicle.

The Court weighed the utility of the information contained on the ticket against the potential harm from disclosing the information. The Court stated that the plaintiff failed to show that anyone has read or taken any of the personal information on the Village’s tickets and used it. Additionally, the plaintiff did not demonstrate that information obtained from the ticket has been used for stalking or to facilitate any other type of crime such as identity theft or invasion of privacy. The Court went on further to state that if these harms had been demonstrated, or if the Police Chief’s reasoning had been successfully rebutted (no rebuttal was made by the plaintiff), or if the Village had made the information available over the internet or placed highly sensitive information such as a Social Security number on the ticket, that the risk of a nontrivial invasion of privacy would be much greater and could potentially outweigh the benefits to law enforcement from placing this information on the ticket.

The initial reading of the Court’s opinion in the Senne case gives the impression that the case condones the unfettered use of personal information on parking tickets by police officers. The opinion of the Court, however, is as much about the plaintiff’s failure to provide evidence to rebut the Police Chief’s testimony regarding the uses for personal information on the ticket and to demonstrate that the potential harm of the information outweighs its use. In our opinion, the Court did not foreclose the possibility that a plaintiff could demonstrate that, although the information provided on the ticket is in furtherance of a permissible use, the harm caused by the information outweighs its use. As a result, it is advisable that the information disclosed on a parking ticket be absolutely necessary to further a municipality’s enforcement of parking regulations. To that end, it is clear that the inclusion of the owner’s name and the year, make, model and registration information for the vehicle is necessary for the issuance of a valid citation. Information such as the owners’ height, weight, address, and driver’s license number could be considered unnecessary for the issuance of a parking ticket and could support a claim under the DPPA.

Please see our recent article addressing the application of the DPPA to Freedom of Information Act requests.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, October 22nd, 2014

Sidewalk Liability and the “Distraction Exception” to the Rule of Open and Obvious Danger

In the recent case of Bruns v. Centralia, the Illinois Supreme Court ruled that the City of Centralia did not owe a duty to a pedestrian injured from a fall on a city sidewalk.  At the heart of the decision was the application of the “distraction exception” to tort law regarding premise liability. Generally, a property owner is not liable for injuries caused by “open and obvious” hazards. The distraction exception provides a theory of liability despite an open and obvious hazard if, among other considerations, it was foreseeable that the person would be distracted and disregard or forget the hazard.

The plaintiff sustained injuries when she fell on an uneven sidewalk leading from the street to the sidewalk in front of the eye clinic she was visiting.  The condition of the sidewalk was caused by tree roots from a historically significant tree nearby. Interestingly, she was aware of the condition of the sidewalk from her nine prior visits to the eye clinic over the three months preceding her fall. The City of Centralia was also aware of the condition of the sidewalk from phone calls from the eye clinic’s employees concerning the condition of the sidewalk. The plaintiff asserted that, although the condition of the sidewalk was an open and obvious danger, she was distracted when she focused on the sidewalk and steps of the eye clinic, thus giving rise to the distraction exception to the open and obvious danger rule.

In the trial court, the City moved for summary judgment arguing that the condition of the sidewalk was an open and obvious danger and, as a result, the City did not owe the plaintiff a duty to repair the sidewalk or protect her from injury. The trial court agreed with the City and entered summary judgment against the plaintiff finding that the distraction exception to the open and obvious danger rule did not apply. On appeal, the appellate court held that the distraction exception applied and stated that it was foreseeable that someone in the plaintiff’s position would focus on the pathway to the door and steps of the eye clinic instead of the open and obvious danger created by the condition of the sidewalk. The City appealed the application of the distraction exception to the Illinois Supreme Court.

In order to determine whether a duty is owed on the part of a landowner, a court analyzes the following four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the landowner.  In analyzing the first two factors, the Supreme Court discussed the open and obvious hazard rule.  Under this rule, “a party who owns or controls land is not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious.”  Prior cases have held that sidewalk defects can constitute open and obvious dangers, but classification of a condition as open and obvious is fact-specific.

Like most rules though, the open and obvious danger rule also has exceptions. One exception is the “distraction exception.” The “distraction exception” applies where the landowner has reason to believe that the invitee will be distracted so as not to discover the obvious condition, forget the obvious condition, or fail to take appropriate measures to protect themselves from the condition. When an exception to the open and obvious danger rule applies, the reasonable foreseeability of the injury and likelihood and severity of the injury are greater, thus weighing in favor of imposing a duty on the landowner.

The Court noted that, while there is no precise definition of “distraction,” a review of case law addressing the application of the exception provides guidance on this issue. In these cases, a focus is on whether the conduct of the landowner contributed to the distraction versus the conduct of the injured party. The Court found the plaintiff’s conduct of looking at the steps and door to the eye clinic to be a self-imposed distraction insufficient to warrant the application of the exception. In declining to impose a duty on the City, the Court held that the imposition of a duty on the City would go beyond the sidewalk repair at issue given the miles of sidewalk that the City is responsible for maintaining. As a result, the open and obvious nature of the sidewalk defect did not warrant imposing a duty on the City to repair or protect the plaintiff from the condition of the sidewalk.

Despite the apparent favorable ruling for municipalities, as always, please keep in mind that the outcome in the Bruns case was fact-specific. Any number of different facts may have altered the outcome of the case and applied a duty on the municipality for injuries resulting from the defective sidewalk.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

 

 

Wednesday, August 27th, 2014

Failure to Activate Squad Car Audio is Not Sanctionable Under People v. Kladis

In the wake of the holding of the Illinois Supreme Court in People v. Kladis, DUI defense attorneys have become increasingly more aggressive in terms of attempting to extend the holding of Kladis to seek discovery sanctions for the failure of police departments to provide squad car audio and video recordings.  Recently, the First District Appellate Court of Illinois reigned in the interpretation of Kladis in its holding in People v. Strobel.

In Strobel, the defendant filed a motion for discovery sanctions after he received a squad video recording of his DUI arrest that did not contain audio.   The video did, however, capture the defendant’s performance on standardized field sobriety tests.  The trial court entered a sanction against the State preventing the State from presenting any testimony or video at trial regarding the defendant’s performance on field sobriety tests due to the lack of audio.  It is important to note that the audio was unavailable in this case because the officer failed to turn on his audio recording device before he approached the defendant’s car.

In reversing the trial court, the First District Appellate Court declined to extend the holding of Kladis to situations where the requested discovery material never existed.  Contrary to the facts in Strobel, Kladis involved a situation where the squad video recording was destroyed after a discovery request was received by the State.  The Strobel court countered the typical argument made by defense attorneys that missing audio or video footage may help a defendant’s case by stating that it is equally possible that the unrecorded audio could “banish any hope of exoneration.”

As a result of the holding in Strobel, it is unlikely that judges will impose sanctions against a municipality simply because the officer failed to activate his audio recording device.  Additionally, judges have been reluctant to sanction municipalities when audio/video recording equipment has failed resulting in an inability to retrieve recordings.  In addressing these arguments by defense counsel, judges have held that municipalities are only obligated to produce that which they possess and control.  As a result, it is apparent that sanctions will be limited to situations where a video/audio recording is destroyed after the prosecutor or the municipality has been put on notice to retain or produce the recording.  As a matter of good practice, we recommend that all municipal police departments retain a copy of every audio or video recording related to an arrest as evidence in a particular case to avoid the potential for sanctions should a request be made for this material at any time when the case is pending.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, March 5th, 2014

Drivers May Not Retrospectively Invalidate Driving While License Suspended Tickets

The Illinois Supreme Court recently issued its opinion in the case People v. Elliot.  The central issue was whether a ticket for driving while license suspended ticket (DWLS) was valid if the basis for the suspension was rescinded in a summary suspension hearing. We previously reported on this issue and took the position that a DWLS should be valid up and until the underlying basis of the suspension is rescinded. In a unanimous decision, the Illinois Supreme Court agreed and reversed the appellate court, holding that the subsequent rescission of the statutory summary suspension did not entitle a motorist to a dismissal of a DWLS ticket issued prior to the rescission of the suspension. In reaching its holding, the Court took an in-depth look into the meaning of the word “rescind” within the context of the Illinois statutory summary suspension law.

In Elliot, the motorist was arrested on August 26, 2009, for the charge of DUI.  On September 1, 2009, Elliot filed his petition to rescind the statutory summary suspension of his driver’s license.  Two days after his summary suspension commenced, Elliot was pulled over and issued a ticket for DWLS. On October 19, 2009, the Jackson County Circuit Court entered an order rescinding Elliot’s summary suspension. Elliot subsequently filed a motion to dismiss his DWLS ticket, arguing that the rescission of his summary suspension invalidated the basis of the driving while license suspended ticket and, as a result, he was entitled to a dismissal of that ticket. The circuit court rejected the argument and he was found guilty of driving while license suspended after a bench trial. Elliot appealed the guilty verdict and the appellate court reversed his conviction.  In reversing the holding of the circuit court, the appellate court reasoned that a rescission of the suspension resulted in a situation where the summary suspension should be treated as though it never happened, thus invalidating the basis of a driving while license suspended ticket.

In reaching its conclusion, the ultimate issue for the Illinois Supreme Court to determine was the meaning of the term “rescind” intended by the legislature in the context of the Illinois summary suspension law. An analysis of the use of the term “rescind” in the Illinois legislature revealed an inconsistent use of the word with both a retroactive meaning and prospective meaning used by the legislature. As a result of the inconsistent use of the word by the legislature, the Court analyzed the Illinois summary suspension law with both a retroactive and prospective meaning of the word “rescind.” The Court determined that the prospective only use of the word furthered the public policy behind the law to swiftly remove impaired drivers from the roadways. If a retrospective approach were given to the word, the criminal act of driving on the suspended license would be contingent upon the suspension being upheld. Additionally, the Court interpreted the language of 625 ILCS 5/6-303 criminalizing the offense of driving on a suspended or revoked driver’s license to be prospective in nature because it makes it a crime to drive “at a time when” a person’s driver’s license privileges are revoked or suspended. As a result, the validity of a driving on a suspended or revoked license ticket is solely based on the status of the motorist’s license at the time the person is pulled over by the arresting officer.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Tuesday, July 23rd, 2013

Prosecution Might Not ‘Blow’ Its Case by Failing to Comply with Breathalyzer Regulations

In June, an Illinois Appellate Court in People v. Olson ruled that the State may raise “substantial compliance” with the Illinois Administrative Code (Code) as an argument for the admission of a breathalyzer test result. The case involved a machine that had not been tested within the required 62 day period required by the regulation. Olson sheds light on how substantial compliance may be viable even when there is apparent non-compliance with the Code’s regulations pertaining to sampling protocol in driving under the influence investigations.

At the heart of the dispute in Olson was the failure of the arresting police department to comply with the requirements of the Code, which mandates that an accuracy check shall be performed at least every 62 days on breathalyzer machines. Prior to Olson, the Appellate Court strictly applied this provision in People v. Clairmont and held that a breathalyzer machine result was not admissible into evidence because 71 days had passed between certification checks. In reaching its holding in Olson, the Court specifically pointed out that, while the results may appear to be inadmissible based upon the Court’s prior holding in Clairmont, the State in Olson preserved its substantial compliance argument by raising it in the trial court, whereas the State in Clairmont had not raised this argument in the trial court. Although the Court declined to address the substance of the State’s substantial compliance argument, the Court specifically cited its holding in Clairmont stating that “courts have held that a lack of strict compliance with certain regulations does not always render test results inadmissible….substantial compliance will be found where the deviation from the regulation neither affects the reliability of the test nor prejudices the defendant.”

The Court’s willingness to allow a substantial compliance argument with respect to the certification of the breathalyzer machine is an extension of the substantial compliance argument that has been recognized by the Court with respect to the regulations governing the collection of blood and urine samples for drugs and alcohol pursuant to a driving under the influence investigation and the 20 minute observation of a subject before submitting to a breathalyzer test. As a practical matter, although Olson only provides that the State can assert a substantial compliance argument in response to the failure of a breathalyzer machine to be certified within the time limits prescribed by the Code, this case has opened the door to the application of the substantial compliance doctrine to the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA) with respect to the administration of the standardized field sobriety tests.  On at least one occasion, a trial court judge has accepted the substantial compliance argument in admitting the results of a horizontal gaze nystagmus test (HGN) where the arresting officer did not hold the stimulus between 12 and 15 inches from the test subject’s face as required by the NHTSA standards.

Is a case like Olson likely to occur in McHenry County? Probably not, because all McHenry County police departments check their breathalyzers more often than the Code requires. One should not, however, discount the importance of the holding in Olson in light of this information. The availability of a substantial compliance argument with respect to the accuracy testing of the breathalyzer might be applied to accuracy checks for other devices, including portable breathalyzer devices, if they do not comply with the Code’s time requirements.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Thursday, February 28th, 2013

Concerns with Court Ruling on Suspended License Violations

A recent Illinois Appellate decision could cause undesirable consequences for municipal enforcement of motorists driving on suspended licenses. A common reason for suspension of driving privileges is the summary suspension resulting from an arrest for driving under the influence of alcohol (DUI).  Pursuant to the Illinois Vehicle Code, a statutory summary suspension, which could last for six months to three years, goes into effect 46 days after an individual is served with notice of the suspension.

Due to the fact that a driver’s license is considered a protected property interest, an individual must be given due process, which includes a right to a hearing before commencement of the suspension to challenge its validity. If that defendant does not seek to have a hearing within 45 days, the suspension kicks in, and then that person does not have a valid license to drive a vehicle. Logic would dictate that if that person is arrested and charged with driving on a suspended license, that person should be guilty regardless of the outcome of a later summary suspension hearing because the driver’s license is not valid at the time of arrest. Despite this logic, a recent Fifth District Appellate Court case, People v. Elliott, held that a person charged with Driving While License Suspended (DWLS) would have the DWLS dismissed if the person’s summary suspension is rescinded at a later date. This holding marked a substantial departure from prior cases in the First and Third Districts addressing how these types of cases should be treated.

In Elliott, an individual was charged with DUI.  The defendant timely filed his petition to rescind the summary suspension and a hearing was scheduled, and then continued past 45 days—the date of an automatic suspension.  The summary suspension was rescinded by the Court at the later hearing date, but on Oct. 13, 2009, the defendant was arrested and charged with DWLS.  The defendant was then found guilty of DWLS and appealed on the basis that the summary suspension was rescinded and should be treated by the Court as though it was never in effect.  Surprisingly, the Fifth District Appellate Court agreed that a rescission of a statutory summary suspension should be given retroactive effect back to its date of commencement. As a result, any DWLS charges received by the defendant prior to the date of rescission are null and void and should be treated as if the license were retroactively valid. In reaching this holding, the Fifth District deviated from the holdings of two other Districts that held that a driver should bear the responsibility of driving during the period of a summary suspension even if the suspension is later found to be erroneous. The Courts’ reasoning rested largely on the fact that the driver is given sufficient opportunities to challenge the legitimacy of the suspension in the 45 days before it goes into effect.

The Second District Appellate Court has not addressed this issue so there is no way to say for certain which holding the Court would adopt. Significantly, the Elliott Court’s holding seemingly allows an individual to continue to drive during a period of a summary suspension as long as there is some indication that a rescission of the summary suspension is likely. This holding goes against the goal of the statutory summary suspension law which is to encourage drivers to submit to chemical testing by reducing the period of summary suspension for those that cooperate with testing.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski