Chicago DUI Statutory Summary Suspension

A person charged with a DUI in Chicago not only faces the possibility of fines and jail, but also a driver’s license suspension. Driving suspensions take two forms, judicial and administrative. The administrative driving suspension is called the Statutory Summary Suspension. Before we talk about fighting the Statutory Summary Suspension, we need to have an understanding of what it is and what is does.

After arresting a person for DUI, the police officer will request a chemical test. Prior to requesting the test, the officer is required to inform the driver of the consequences for taking and refusing the test. The person must be informed that if they fail the test, there is a six-month suspension. If they refuse the test, the suspension lasts twelve months. A second offender has a twelve-month suspension if they take the test and are over the limit and a three-year suspension on a refusal.

If a person tests over the prohibited level or refuses to take the test, the officer will seize the driver’s license and issue a receipt, which allows the person to drive for 45 days. On the 46th day, the suspension takes effect.

The police officer’s department sends a copy of his report to the Secretary of State and the court confirming that the suspension notice was served on the driver. The Secretary of State’s office enters a suspension effective 45 days from the date of the notice to the driver. The driver can request a judicial hearing to challenge the Statutory Summary Suspension. The act of requesting the hearing does not delay the start of the suspension.

At the hearing, our attorneys challenge whether or not the officer had probable cause to make the arrest, whether there was an actual arrest made, whether or not the officer provided the driver with the required warning, and whether or not there was a refusal or failure of the test.

Any petition to rescind the suspension must be filed within 90 days of the date of service of the notice of suspension. Failure to file within that period will be grounds to have petition to rescind denied. The petition must also properly indicate that it was filed on the prosecuting attorney.

Once the petition to rescind is filed, a hearing date will be set. The date must be set within 30 days of the filing of the notice. Failure to provide the driver with a hearing within the 30 days will result in an automatic recession of the suspension. What does this mean for our client? Typically, we want to file the petition to rescind as quickly as possible. The State has the burden of ensuring that the court date for the hearing is set within the 30-day period. If they do not have it set, then the automatic rescission is the proper result.

What happens if your first court date is more than 30 days after your notice of suspension and more than 30 days after your petition to rescind was filed? Some courts interpret the statute to allow a hearing on the first court date, even if that is more than 30 days after the petition is filed.

However, a diligent Chicago DUI attorney will argue that the Supreme Court in People v. Shaffer held that it is undisputed that the defendant’s challenge to the Summary Suspension must be heard within 30 days, unless the delay is caused by the defendant. And they will also argue that in People v. Miklos, the right to an expedient hearing is one protected by the Constitution. Despite compliance with the statute, if the driver did not receive a timely hearing there may be grounds to have the suspension set aside. We will analyze this issue in your specific case and advise you on the best way to argue it.

Once the petition is filed and the hearing date established, the actual hearing will occur. In a Summary Suspension hearing, the burden of going forward with evidence that the suspension was improperly imposed lies with the driver.

Only after a prima facie case is made does the burden shift to the State to come forward with evidence justifying the suspension. After that, the burden is on the motorist to prove, by a preponderance of evidence, that they are entitled to rescission.

The quicker the defense attorney is retained, the quicker they can begin the process of putting your case together. Any delay in retaining counsel will directly impact the ability of both the defense and State in preparing for the Statutory Summary Suspension hearing. The more time the State has to put their case together, the better case they will be able to present.

Why is it so important to retain an attorney as quickly as possible after an arrest? Because the defense attorney needs time to gather the evidence and build the strongest case possible. The State has hundreds and hundreds of pending cases and the more time they are given, the better prepared they will be. We want to strike first and quickly so the State is reacting to our move and giving them additional time to prepare is not the goal.

Time is of the essence when dealing with a Statutory Summary Suspension. This is true for the mandatory filing deadlines and for gaining a tactical advantage over the prosecutor. Call us today for a free, no obligation case consultation. We will review the facts of your case, the potential penalties, as well as begin mapping out a comprehensive defense plan. The consultation is absolutely free and there is no obligation to retain us to represent you. But, please call today, the timing in a Chicago DUI case is critical.