Under the Illinois Motor Vehicle Code, there is a “statutory summary suspension” of a motorist’s license if he or she is arrested for a DUI and either “fails” a breath, blood or urine test or refuses testing. 625 ILCS 5/11-501.1.
The motorist can petition the court to “rescind” the suspension.
My copy of Black’s law dictionary defines “rescission” as “to abrogate, annul, … to declare …void in its inception and to put an end to it as though it was never there.”
So you would think that if a court “rescinds” your statutory summary suspension, it is as if it never happened. That’s what “rescind” means, right? Because by definition, its retroactive!
So what happens if a suspended motorist (who may feel that the suspension was illegal and will be thrown out by a judge) chooses to ignore the suspension and drives, only to get caught and charged with driving while suspended — but later is vindicated when the suspension is “rescinded”?
In a 1997 case, People v. Focia, 287 Ill.App. 3d 767, 679 N.E. 2d 121, 223 Ill.Dec. 177 (Ill. App. 3, 1997) , the Third Appellate District of Illinois held that the word “rescission” has a different meaning than its normal meaning in the DUI context. Basically, the court interpreted the word “rescission” to mean “termination” when applied to DUI cases. This was because the court felt that the purpose of the summary suspension law was to get accused drunk drivers off the roads. If the court ruled that a rescission absolved a person of a driving while suspended, it would only encourage people to continue to drive after their suspension began, in anticipation of a rescission. Therefore, the court said, the driver must wait until a judge “rescinded” the suspension before driving again.
To my way of thinking, this was a classic example of “judicial activism” because the court was making its own policy determinations (that accused drunk drivers should not be driving until a court clears them) instead of simply reading the words of a statute and giving them their ordinary meaning. After all, the legislature is presumably knew what they were doing when they chose to use the word “rescind” instead of “overturn” or “terminate.”
But this ridiculous court opinion, giving the word “rescind” a special new meaning only when it comes to DUI cases, has been the law in Illinois for the past 15 years.
Since I don’t practice in the Third Appellate District, I have, from time to time, filed “Motion(s) to Dismiss” asking courts to ignore the Focia decision as unwise. Occasionally, these motions have resulted in a reduced sentence, but never an actual dismissal.
Until today, anyway. The Fifth Appellate District released a contradictory opinion in People v. David K. Elliott, 2012 IL App (5th) 100584, essentially adopting the common sense proposition (and traditional rule of statutory interpretation) that the words of a statute will be given their ordinary meaning. Hence, a “rescission” means that the suspension never happened.
Yes, all the court did was apply a commonsense reading of the words of the statute to come to the correct decision.
Am I surprised? You bet.
This has been a classic example of what DUI defense attorneys often call the “DUI exception to _____” (fill in the blank with constitution, logic, fairness or whatever else may apply). DUI has become such a hot button issue that courts regularly ignore all legal precedents and common sense to come to an anti-drunk driving ruling. So I am pleasantly surprised when a court is willing to come to the correct decision even if it means that the justices might be labeled “soft on DUI.”
What does this mean to drivers in the Chicago area? Cook, Lake or DuPage are in the First and Second Appellate Districts, so in this case, since there are conflicting decisions from other Districts, trial judges are to apply the most recent opinion.
However, the legal fiction that “rescind” has a special meaning in DUI cases will continue to apply in the Third District, at least for now until another Appellate District or the Illinois Supreme Court rules on the issue.
Here is a map of the Illinois Appellate Districts: