Illinois Statutory Summary Suspension:
Deadlines, Hearings, and Driving Relief

What Is a Statutory Summary Suspension?

One of the first questions many people ask after being arrested for DUI is: “What is a Statutory Summary Suspension?”

A Statutory Summary Suspension is the suspension of your Illinois driving privileges that usually occurs after a DUI arrest if the statutory requirements have been satisfied.

Unlike the criminal DUI case, the Statutory Summary Suspension is an administrative action affecting your driving privileges. Although both proceedings arise from the same arrest and are generally heard in the same courtroom as the DUI case, they are separate legal proceedings that serve different purposes and follow different legal rules.

In most DUI cases, the arresting officer will serve the driver with a Notice of Statutory Summary Suspension at the time of the arrest if the statutory requirements have been satisfied.

That notice generally advises the driver that the suspension does not begin immediately. Instead, it becomes effective on the 46th day after the notice is served, unless the Statutory Summary Suspension is rescinded (canceled) by court order.

Because the Statutory Summary Suspension may affect your ability to drive long before your criminal DUI case is resolved, it is important to understand your rights, the statutory deadlines, and the legal procedures available to challenge the suspension.

One of the biggest misconceptions after a DUI arrest is that the Statutory Summary Suspension and the criminal DUI case are the same proceeding. They are not.

Although both arise from the same arrest and are generally heard in the same courtroom, the criminal DUI case and the Statutory Summary Suspension proceeding address different legal issues. A person may need to defend the criminal DUI case while simultaneously prosecuting a Petition to Rescind the Statutory Summary Suspension.

Understanding the distinction between these proceedings is important because success in one does not automatically determine the outcome of the other.

When Does My Statutory Summary Suspension Begin?

One of the most common misconceptions after a DUI arrest is that a Statutory Summary Suspension begins immediately. It does not.

If the statutory requirements have been satisfied and you are served with a Notice of Statutory Summary Suspension, the suspension generally becomes effective on the 46th day after the notice is served.

In most cases, this means you may continue driving during the first 45 days after receiving the Notice of Statutory Summary Suspension, provided your driving privileges are otherwise valid and no other suspension or revocation is in effect.

Those first 45 days are important because they provide your attorney with an opportunity to evaluate the criminal DUI case, determine whether legal grounds exist to file a Petition to Rescind the Statutory Summary Suspension, and begin gathering and reviewing the evidence.

What If I Never Received a Notice of Statutory Summary Suspension?

Not every DUI arrest results in a driver immediately receiving a Notice of Statutory Summary Suspension.

• The arresting officer may not have served the notice at the time of the arrest.
• The notice may later be mailed to the address shown on your driver’s license.
• In some situations, the notice may be personally delivered after the arrest.
• Law enforcement may be waiting for the results of chemical testing before determining whether a Statutory Summary Suspension should be issued.
• In other cases, a Statutory Summary Suspension may not be issued at all.

The circumstances surrounding the service, or lack of service, of a Notice of Statutory Summary Suspension may have important legal consequences. In some cases, the failure to properly serve the notice may provide legal grounds to challenge the suspension.

For that reason, if you have been arrested for DUI and are uncertain whether a Statutory Summary Suspension has been issued, you should have the matter reviewed as soon as possible.

Many people assume that if they did not receive a Notice of Statutory Summary Suspension at the time of their arrest, they do not need to worry about their driving privileges. That assumption can be costly.

Whether a Statutory Summary Suspension has been issued, whether it was properly served, and when it becomes effective are issues that should be evaluated promptly after every DUI arrest.

Can I Fight My Statutory Summary Suspension?

Yes. Illinois law provides a procedure that allows many drivers to ask the court to rescind (cancel) a Statutory Summary Suspension. That procedure is known as a Petition to Rescind a Statutory Summary Suspension.

A Petition to Rescind is a legal request asking the court to determine whether the Statutory Summary Suspension should remain in effect or be rescinded. Although the Petition to Rescind is generally heard in the same courtroom as the criminal DUI case, it is a separate legal proceeding involving different legal issues.

Unlike the criminal DUI case, where the State bears the burden of proving the defendant guilty beyond a reasonable doubt, the driver bears the burden of proving one or more statutory grounds to rescind the Statutory Summary Suspension.

The facts and circumstances of every DUI arrest are different. Some cases may present legal grounds to rescind the Statutory Summary Suspension, while others may not. Determining whether grounds exist requires a careful review of the facts, the available evidence, and the applicable law.

Illinois law also establishes time limitations governing when a Petition to Rescind may be filed. Failing to act within the applicable statutory time period may affect your ability to challenge the Statutory Summary Suspension.

A successful Petition to Rescind does not automatically dismiss the criminal DUI charge. Likewise, an unsuccessful Petition to Rescind does not determine the outcome of the criminal case. Each proceeding must be evaluated on its own merits.

Illinois law provides a procedure to challenge many Statutory Summary Suspensions. However, filing a Petition to Rescind is only the first step. The driver must still establish one or more statutory grounds for rescission based upon the facts of the particular case.

Because Illinois law imposes statutory filing deadlines, it is important to have your case reviewed as soon as possible to determine whether grounds exist to challenge the suspension and whether the necessary filings can be made within the required time period.

What Are the Legal Grounds to Rescind a Statutory Summary Suspension?

Although Illinois law allows many drivers to file a Petition to Rescind a Statutory Summary Suspension, filing a petition does not automatically result in the suspension being rescinded.

Instead, the driver must establish one or more legal grounds supporting rescission.

In many cases, those grounds are the statutory grounds established by Illinois law. Depending upon the facts of the case, those issues may include:

• Whether the police officer had reasonable grounds to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, another drug, or intoxicating compound.
• Whether the person was lawfully placed under arrest for DUI.
• Whether the arresting officer properly advised the driver as required by Illinois law.
• Whether the driver actually refused chemical testing.
• Whether the chemical testing procedures complied with the requirements of Illinois law.
• Whether the driver submitted to testing and the testing disclosed the alcohol concentration or other results required by statute.

Depending upon the facts of the case, other legal issues may also affect whether the Statutory Summary Suspension should remain in effect. For example:

• Whether the underlying traffic stop complied with constitutional requirements.
• Whether the driver received legally sufficient notice of the Statutory Summary Suspension.
• Other constitutional, statutory, or case law issues that may affect the validity of the suspension.

Not every legal issue applies in every case. Determining which grounds may be available requires a careful review of the police reports, available video evidence, witness statements, chemical testing records, and the applicable law.

Because the driver bears the burden of proving grounds to rescind the Statutory Summary Suspension, identifying the appropriate issues early in the case is often critical.

The availability of grounds for rescission depends upon the facts of the individual case. While many challenges involve the statutory grounds for rescission, other constitutional and legal issues may also affect whether the suspension should remain in effect.

An experienced Illinois DUI attorney should evaluate every potential legal issue before determining the most appropriate strategy for challenging the suspension.

What Happens at a Petition to Rescind Hearing?

Many drivers know they have the right to file a Petition to Rescind a Statutory Summary Suspension, but they are often unsure what actually happens once the petition has been filed.

A Petition to Rescind hearing is a court proceeding in which the judge determines whether the Statutory Summary Suspension should remain in effect or be rescinded (canceled).

Although the hearing is generally conducted in the same courtroom as the criminal DUI case, it is a separate legal proceeding involving different legal issues. The hearing is generally limited to the issues raised in the Petition to Rescind and any other applicable legal issues recognized under Illinois law.

At the hearing, both parties may present evidence relating to the issues before the court. Depending upon the circumstances of the case, that evidence may include:

• Testimony from the arresting officer.
• Testimony from other witnesses.
• Body-worn camera recordings.
• Squad-car video.
• Chemical testing records.
• Relevant documents.
• Exhibits admitted into evidence.

After considering the evidence and the applicable law, the court will determine whether the Statutory Summary Suspension should remain in effect or be rescinded.

The outcome of the Petition to Rescind does not determine whether the defendant is guilty or not guilty of DUI. The criminal DUI case continues as a separate proceeding.

A Petition to Rescind hearing is often one of the earliest opportunities for both the defense and the prosecution to present testimony and other evidence relating to the DUI arrest.

Because witnesses may testify under oath and be subject to cross-examination, these hearings frequently become an important part of preparing the defense of the criminal DUI case.

Whether a Petition to Rescind hearing is appropriate, and the issues that should be raised, depend upon the facts and circumstances of each individual case.

If I Win My Petition to Rescind, Is My DUI Case Over?

No.

One of the most common misconceptions is that a successful Petition to Rescind a Statutory Summary Suspension automatically results in the dismissal of the criminal DUI charge.

That is wrong.

The criminal DUI case and the Statutory Summary Suspension are separate legal proceedings. Although both arise from the same arrest and are generally heard in the same courtroom, they involve different legal issues, different burdens, and different evidentiary rules.

The DUI prosecution is a criminal proceeding governed by Illinois criminal law and criminal procedure. The Petition to Rescind is a civil proceeding governed by the Illinois Vehicle Code and Illinois civil procedure.

If the court grants a Petition to Rescind, the Statutory Summary Suspension is canceled and your driving privileges are no longer suspended as a result of that proceeding.

The criminal DUI case, however, continues unless it is separately resolved through dismissal, acquittal, amendment to another offense, court supervision, conviction, or another lawful disposition.

Likewise, an unsuccessful Petition to Rescind does not determine the outcome of the criminal DUI case. The State must still prove the criminal charge beyond a reasonable doubt.

The outcome of one proceeding does not automatically determine the outcome of the other.

The criminal DUI case and the Statutory Summary Suspension proceeding may arise from the same arrest and be heard by the same judge, but they are governed by different bodies of Illinois law.

One determines whether the State can prove the criminal DUI charge. The other determines whether the driver has established legal grounds to rescind the Statutory Summary Suspension.

Understanding those differences is important when developing a legal strategy for both proceedings.

Can I Drive While My Statutory Summary Suspension Is in Effect?

One of the most common concerns after receiving a Notice of Statutory Summary Suspension is whether you will still be able to drive.

The answer depends upon your driving history and your eligibility under Illinois law.

Some drivers may qualify for a Monitoring Device Driving Permit (MDDP) during the period of a Statutory Summary Suspension. An MDDP generally allows an eligible driver to operate a vehicle equipped with a Breath Alcohol Ignition Interlock Device (BAIID) during the suspension.

Eligibility for an MDDP depends upon the driver’s background and the statutory requirements established by Illinois law. Not every driver qualifies for an MDDP.

Drivers who are not eligible for an MDDP may, in some circumstances, seek driving relief through an administrative hearing before the Illinois Secretary of State. However, those proceedings are separate from the criminal DUI case, are often lengthy, and generally do not provide immediate driving relief.

Because the availability of driving relief depends upon the driver’s individual circumstances and the applicable provisions of Illinois law, eligibility should be evaluated as soon as possible after a DUI arrest.

Depending upon the driver’s background and eligibility under Illinois law, some drivers may qualify for an MDDP, while others may need to pursue driving relief through the administrative hearing process with the Illinois Secretary of State.

Determining which option, if any, is available requires a careful review of the driver’s history and the applicable statutory requirements.

What Happens If I Do Nothing?

One of the biggest mistakes a driver can make after receiving a Notice of Statutory Summary Suspension is assuming that nothing needs to be done until the suspension actually begins.

That is usually a mistake.

If no action is taken, the Statutory Summary Suspension generally becomes effective on the 46th day after the Notice of Statutory Summary Suspension is served, unless it has been rescinded (canceled) by court order.

Although the suspension does not begin immediately, the 46-day period is one of the most important stages of the case.

During that time, your attorney may have the opportunity to:

• File a Petition to Rescind the Statutory Summary Suspension.
• Obtain and review discovery.
• Investigate the facts surrounding the arrest.
• Identify statutory, constitutional, or other legal grounds to challenge the suspension.
• Litigate the Petition to Rescind before the Statutory Summary Suspension ever takes effect.

Taking prompt action does not mean that every Statutory Summary Suspension can be rescinded. However, waiting until the suspension begins may result in missed opportunities to investigate the case, obtain and review discovery, and litigate the Petition to Rescind before the Statutory Summary Suspension ever takes effect.

The 46-day period before the Statutory Summary Suspension becomes effective is not simply a waiting period.

It is often the most important opportunity to obtain discovery, investigate the case, prepare and file a Petition to Rescind, and, in many cases, complete the rescission hearing before the Statutory Summary Suspension ever takes effect.

For that reason, waiting until your driving privileges are suspended before consulting an attorney may significantly reduce the opportunity to obtain meaningful relief before the suspension begins.

How Quickly Must I File a Petition to Rescind?

Illinois law imposes specific time limits on a challenge to a Statutory Summary Suspension.

A written request for a judicial hearing must be filed within 90 days after the Notice of Statutory Summary Suspension is served. The request must identify the legal grounds upon which the driver seeks to have the suspension rescinded.

After the Petition to Rescind is received, the hearing must generally be conducted within 30 days after the court receives the Petition to Rescind filed by your attorney or on the first appearance date listed on the traffic tickets, whichever is later.

Filing a Petition to Rescind does not automatically stay or delay the Statutory Summary Suspension. Unless the suspension is rescinded by court order, it generally takes effect on the 46th day after service of the notice even if the Petition to Rescind remains pending.

For that reason, waiting until the suspension begins may surrender one of the most valuable opportunities in the case: the ability to file the petition, obtain and review discovery, investigate the arrest, and potentially litigate the suspension before it ever affects your driving privileges.

Although Illinois law allows the written request to be filed within 90 days, that does not mean waiting 90 days is strategically advisable. The timing of the filing should be evaluated promptly based upon the notice, the first court date, the available evidence, and the circumstances of the individual case.

The deadline for filing the Petition to Rescind and the deadline for conducting the hearing are different.

The driver must timely file the written request. Once the court receives the Petition to Rescind, the hearing must generally occur within 30 days after receipt or on the first appearance date listed on the traffic tickets, whichever is later.

Because filing the petition does not stop the Statutory Summary Suspension from beginning, early action may provide the best opportunity to obtain discovery and litigate the Petition to Rescind before the suspension takes effect.

Do I Have to Testify at My Petition to Rescind Hearing?

One of the questions drivers often ask is whether they will be required to testify at the hearing on their Petition to Rescind a Statutory Summary Suspension.

The answer depends upon the facts and strategy of the individual case.

A Petition to Rescind is a civil proceeding, not a criminal prosecution. As a result, the procedural rules differ from those that apply during the criminal DUI case.

In many cases, the issues presented at a Petition to Rescind hearing can be addressed through the testimony of the arresting officer, documentary evidence, video evidence, or other admissible evidence.

In other cases, the driver’s testimony may become relevant to one or more issues raised by the Petition to Rescind.

Because a Petition to Rescind is a civil proceeding, the prosecution may call the driver as a witness during the hearing. The decision whether the driver should testify, and how to respond if called as a witness, should be carefully evaluated as part of the overall litigation strategy.

Whether a driver should testify is a strategic legal decision that should be made only after considering:

• The legal issues being litigated.
• The available evidence.
• The anticipated testimony of other witnesses.
• The potential effect that testimony may have on both the Petition to Rescind and the criminal DUI case.

Many drivers assume they have the same protections at a Petition to Rescind hearing that they would have during the criminal DUI trial.

A Petition to Rescind is a civil proceeding, and the rules governing testimony differ from those applicable in the criminal prosecution.

For that reason, decisions regarding testimony should never be made without carefully considering both the rescission hearing and the pending criminal DUI case.