Published by The Davis Law Group, P.C.
OUT-OF-STATE PETITIONS
ALL OUT-OF-STATE PETITIONS MADE BY WRITTEN APPLICATION INSTEAD OF AN IN-PERSON APPEARANCE WILL BE CONSIDERED INFORMAL HEARINGS – 1001.100(b)
Written applications by out-of-state residents will no longer be considered formal hearings conducted pursuant to 625 ILCS 5/2-118. Accordingly, these applications will not be required to be accompanied by the $50.00 application fee. Decisions from these informal hearings will not constitute final administrative decisions and, therefore, will not be subject to the provisions of the Administrative Review Act. 1001.100(b)(3) and 1001.300(a).
If an out-of-state petitioner wishes to exercise his/her right to a formal hearing an in-person appearance will be required. The request for hearing will need to be accompanied by the $50.00 fee.
An in-person formal hearing appearance for out-of-state residents will now include hearings conducted remotely. To qualify as an in-person hearing the remote technology must have real-time audio-visual capabilities. They do not include telephonic hearings. (The Secretary of State’s office has given its assurance that it has or will install Web-X at its formal hearing facilities). As always, an applicant may choose to appear physically in-person. 1001.100(b).
Out-of-state petitioners who have lifetime revocations will be required to have a formal hearing and will therefore be required to appear either in-person or remotely. They will not be allowed to submit a written application package unless the hearing officer finds that there are material extenuating circumstances (inconvenience and monetary considerations do not qualify). 100.100(b)(1) and 1001.430(l)(i).
PROOF OF OUT-OF-STATE RESIDENCY – 1001.100(b)(1)
Out-of-state applicants who are BAIID Multiple Offenders (BMO) or Lifetime Permittees will need to provide proof of out-of-state residency by submitting a valid state-issued ID card or license in order to be considered for reinstatement.
ALCOHOL/DRUG EVALUATIONS, TREATMENT DOCUMENTATION AND RISK EDUCATION VERIFICATION FOR OUT-OF-STATE APPLICANTS – 1001.100(b)(2) and 1001.440(a)(2).
Out-of-state petitioners who choose to submit a written application, which, as stated, will now constitute an informal hearing – are not required to meet Subpart D requirements of the administrative rules. See Sections 1001.400-1001.490 / “Standards for the granting of restricted driving permits, reinstatement, and the termination of cancellations.”
A new application form designed by the Secretary of State for such applicants will include evaluation, treatment and risk education information (as applicable) all of which will be completed by the out-of-state evaluator.
All out-of-state applicants who appear at an in-person hearing as a matter of choice or if required (lifetime revocation applicants) must meet Subpart D requirements including the completion of an evaluation completed by an Illinois DSUPR licensed provider. Treatment requirements and risk education (as applicable) may be completed by a licensed out-of-state provider as already permitted under existing rules. 1001.100(b)(2).
DECISION-MAKING TIME LIMITS – 1001.100(b)(3)
Written applications by out-of-state applicants must be assigned to a hearing officer within 10 days and a decision entered within 180 days. (Contrast this with the formal hearing requirement that a hearing be scheduled within 90 days of request and decision rendered within 90 days of the hearing) – See statutory requirements at 625 ILCS 5/2-118(a) and (d).
LIFETIME REVOCATIONS – 1001.420(l)(1)
Lifetime out-of-state petitioners seeking termination of an Illinois revocation are required to have an in-person hearing and complete Subpart D requirements. In-person hearings will include proceedings where the petitioner is physically present or a remote hearing with real-time audio/visual communication. Please recall that such persons are prohibited from applying for termination until at least 10-years from the date of the last order of revocation. See 625 ILCS 5/6-208(b)(4.5).
OUT-OF-STATE PETITIONERS WHO NEVER RESIDED IN ILLINOIS – 1001.430(k)(1)(A)
Under the current rule out-of-state petitioners who have never resided in Illinois may seek reinstatement if (a) not currently a resident of Illinois; (b) at the time of the violation(s) that led to the revocation was an out-of-state resident and continues to be an out-of-state resident; (c) does not seem to reside or be licensed in Illinois; (d) the state where the petitioner resided at the time of the offense(s) did not take action or the action has terminated; (e) the petitioner has no stops in any other state; and (f) all fees have been paid to Illinois. The rule has been amended to require that the petitioner produce a driver’s license or identification card (government-issued) from his/her state of residency as part of the application process.
PROOF OF RESIDENCY – 1001.100(b)(1)
Out-of-state applicants who have a lifetime revocation or who are BMO and have not completed BAIID requirements must provide a valid state-issued ID card or driver’s license. Applicants who do not fall into either of these categories may continue to prove out-of-state residency through, but not limited to, the use of leases, voter registration, utility bills, telephone bills, bank statements, income tax returns, mortgage statements or employment verification. 1001.100(b)(1).
WITHDRAWAL OF OUT-OF-STATE PETITIONS – 1001.100(v)(7)
The rule providing that out-of-state petitioners who fail to submit required documentation within 30 days of written demand are deemed to have withdrawn their application and may not submit another application for 30 days from the date of the withdrawal order has been rescinded. In the past, the failure to withdraw would result in a default. The rules are now silent as to the consequences of a failure to withdraw.
15-YEAR RULE – 1001.440(o)
The rule providing that out-of-state petitioners whose last DUI disposition occurred more than 15-years prior to the current application date may be excused from the requirement of an alcohol/drug evaluation under certain circumstances has been rescinded.
FORMAL HEARING PROCEDURAL RULES
MOTIONS TO CONTINUE OR WITHDRAW – 1001.100(v)
The inability to obtain transportation to the hearing location or to obtain the documents minimally required to be favorable considered for driving relief are now considered circumstances that may, within the discretion of the hearing officer, justify a continuance upon a showing of good cause (previously these factors were not the basis for a continuance).
INFORMAL HEARING ELIGIBILITY / FORMAL HEARING REQUIRED – 1001.300(b), 1001.441(c) and 1001.470(a)
The Secretary of State has added cases where a formal hearing will now be required:
- All hearings involving a revocation, suspension or cancellation resulting from an offense involving a death. The exception for revocations entered pursuant to 625 ILCS 5/6-205(a)(16) – where death was proximately caused by a moving violation has been rescinded – 1001.300(b)(1):
- The petitioner has 2 or more DUI dispositions during his or her lifetime, at least one of which resulted in the current open revocation or suspension (which will now include suspensions entered pursuant to 11-501.6 – Type A accident suspensions). Previously, this rule provided that only a person with more than 1 statutory summary suspensions/revocations arising out of separate offenses was required to have a formal hearing. (The most common example would be in the case with the person who received supervision and a rescission of suspension on a prior DUI and now is revoked as a result of a second or subsequent DUI. Previously, this person would have been eligible for an informal hearing and will now be required to have a formal hearing) – 1001.300(b)(3);
- Renewal of a RDP if there were BAIID violations which were not satisfactorily explained to the BAIID Division – 1001.300(b)(6) and 1001.441(c);
- A petitioner subject to a lifetime revocation regardless of the nature of the current suspension or revocation – 1001.300(b)(8).
Additionally, the previous unwritten policy requiring a formal hearing for reinstatement where a formal hearing was required for issuance of the initial permit (not extensions) is now part of the administrative rules. 1001.300(b)(7).
REINSTATEMENT
TIME LIMIT TO COMPLETE REINSTATEMENT REQUIREMENTS – 1001.110(d)(2)
Petitioners granted reinstatement must complete the requirements within a period of 18-months (rather than 12-months) from the date of the Secretary of State’s order.
RESTRICTED DRIVING PERMITS
NO HARDSHIP REQUIRED
The Secretary of State has designated 2 types of RDPs for which it has determined it will not require the petitioner to demonstrate a hardship:
PROBATIONARY RDP
The probationary RDP is issued to a non-BMO petitioner who is eligible for full reinstatement but, in the opinion of the Secretary of State, should be first required to drive on a permit as a probationary device – 1001.420(j)(1).
The probationary permit will be issued for any lawful purpose 12 hours per day, 6 days per week, within a 200 mile radius for a period of up to 1-year. A waiver of this provision may be granted by the Director of the Department of Administrative Hearings upon a showing of exigent circumstances – 1001.430(i).
Petitioners granted a probationary permit (i.e., those otherwise eligible for reinstatement at the time of issuance) must drive on the permit for 75% of its length prior to being allowed to apply for reinstatement – 1001.430(i).
BAIID MULTIPLE OFFENDER (BMO) RDP
Regardless of whether the BMO petitioner is eligible for full reinstatement at the time of application, no hardship need be shown. The BMO RDP will be issued for any legitimate purpose up to 12 hours per day, 6 days per week within a 200 mile radius – 1001.430(j)(2)(C).
(Note that no waiver procedure of these limits is provided for BMO RDPs. Contrast with the waiver provided for Probationary RDPs – see 1001.430(i)).
A BMO RDP (formerly known as a BAIID Required Permit) is issued to a person who is subject to a 5-year BAIID requirement due to a second or subsequent DUI conviction.
The BMO RDP may be issued for a period of up to 2-years and may be renewed at an informal hearing unless a rejected BAIID violation has occurred in which case renewal can only occur at a formal hearing – 1001.420(j)(2).
To avoid a lapse in the BMO RDP, a renewal hearing (whether formal or informal) must take place prior to the expiration of the permit. However, a lapse will not be deemed to have occurred if the person keeps the BAIID installed during the lapse period. However, the time during which the permit lapsed will be added to the end of the original 5-year period so that 5-years on a valid permit is actually completed. 1001.470(a).
The BMO permittee must keep the device installed as required for the 1,826 consecutive days (5-years) prior to application for reinstatement. Deinstallation without approval will result in the restart of the 5-year requirement – 1001.420(j)(2)(A) and 1001.470(a)
If the petitioner is not eligible for reinstatement and is granted a RDP and then becomes eligible for reinstatement, he or she must drive on the RDP for 75% of the length of the initial permit period before being considered for reinstatement – 1001.430(i).
Those BMO permittees who hold an employment exemption and do not otherwise utilize a BAIID do not satisfy the 5-year BAIID requirement prior to full reinstatement unless and until they drive on the device for the 5-year period – 1001.443(b)(2).
The 5-year BMO RDP requirement went into effect on January 1, 2016. BMO permittees who were granted relief or had a hearing granting relief prior to that date were subject to a requirement that they successfully drive on a BAIID for 366 consecutive days. Those permittees who failed to complete this requirement are now subject to the full 5-year requirement of 1,826 days – 1001.443(b)(e).
HARDSHIP REQUIRED
RDPs may be issued to relieve an undue hardship for those not otherwise eligible for full reinstatement or those with lifetime revocations. Note that those petitioners designated as BMO who also have not reached their eligibility date for full reinstatement are nevertheless not required to demonstrate a hardship.
There are 2 types of RDPs that require the demonstration of a hardship: Standard and Lifetime. These permits may be issued for a variety of statutory authorized reasons including: employment, medical, court ordered activities, educational, support/recovery or day care – 1001.420(b).
‘STANDARD’ RDP – 1001.430(i)
Typically, the applicant for this type of RDP has a single conviction (1-year) revocation or a ‘second offender’ summary suspension (3-year) either of which may or may not have been extended.
If the petitioner is not eligible for reinstatement at the time of application (other than a BMO applicant) and is granted a RDP and then subsequently becomes eligible for reinstatement, he or she must drive on the RDP for 75% of the length of the initial permit period before being considered for reinstatement.
LIFETIME RDP
Persons who have been convicted of committing a fourth or subsequent DUI violation, reckless homicide (720 ILCS 5/9-3(a)) or leaving the scene of a personal injury/death (625 ILCS 5/11-401) or combination thereof, with the last arrest occurring on or after January 1, 1999 are revoked for life. They are permitted to apply for a RDP 5-years from the date of the last order of revocation of release from incarceration – whichever is later – unless more than 1 of the DUIs are drug-based.
These petitioners are always BMO and are never eligible for reinstatement unless they establish a bona-fide out-of-state residency. In that situation they can apply 10-years from the last order of revocation.
TIME LIMIT TO COMPLETE RDP REQUIREMENTS – 1001.110(d)(1)
Petitioners granted a restricted driving permit must complete the requirements within a period of 120-days (rather than 90-days) from the date of the Secretary of State’s order.
DRIVING FOR REASONS OTHER THAN A STATUTORY AUTHORIZED PURPOSE – 1001.420(e)
Persons driving on a RDP may use the permit to get gas, charge the vehicle or emergency repairs. The new rule goes on to provide that “…routine vehicle care, including but not limited to oil changes, tire rotation, alignment and emission testing, or service performed substantially outside the geographical parameters of the permit do not qualify for this exception.” It is unclear if these routine vehicle care activities are permissible within the geographical limits of the permit.
BAIID
The rules continue the policy which prohibits a BAIID violation which has not been satisfactorily explained from serving as the “sole” basis for cancelling a RDP. However, the violation is to be included in the driver’s file to be considered at the next hearing for driving relief. These persons will be required to appear at a formal hearing (even if the person would have otherwise been eligible for an informal hearing to seek a renewal of a RDP). See 1001.300(b)(6); 1001.400(b)(4) and 100.441(c).
Such persons may be granted a RDP renewal for a period of up to 12 months. During this 12-month period the person must come into compliance with Subpart D requirements. Failure to do so will result in the person being denied further relief. If the person is a BMO he or she will be required to restart the 5-year BMO period. See 1001.400(b)(4) and 1001.441(d).
The 5-year BMO statute took effect on January 1, 2016. For those BMO offenders who were granted relief pursuant to a hearing held prior to that date, the law only required that the person drive on the BAIID for a period of 366 consecutive days. If the person failed to complete the 366 day requirement due to cancellation of the RDP or failure to complete the requirements to obtain the RDP, they are required to reapply and are subject to the 5-year requirement – 1001.443(e).
The rules clarify when a lapse in a BMO RDP will be deemed to have occurred, requiring a restart of the 5-year period. Provided that the hearing to renew the permit takes place prior to the permit expiration date any subsequent lapse in the permit will not result in a restart of the 5-year period if the person keeps the BAIID installed. However, the total period of any lapse will be added to the end of the 5-year period thereby assuring that the person has had the BAIID device installed with a valid permit for a full period of 5-years – 1001.470(a).
Deinstallation of the BAIID prior to the completion of the 366 day requirement is an added basis for requiring compliance with the 5-year requirement – 1001.443(e)
DEFINITIONS – DUI DISPOSITION – 1001.310 and 1001.410
The definition of DUI disposition has been amended to include suspensions entered pursuant to 625 ILCS 5/11-501.9 (Failure of or refusal to submit to roadside chemical tests or field sobriety tests in cannabis-related DUI cases).
UPDATE EVALUATIONS – 1001.440(a)(5)(A)(ii)
While treatment providers can normally provide an update evaluation even where they did not complete the original evaluation, the past rule prohibited them from doing so if the only service provided was Early Intervention (Moderate Risk classification). This was due to the fact that Early Intervention does not constitute treatment. The revised rule has now expanded this prohibition to programs that only provided continuing care services.
OPIATE SUBSTITUTION PROGRAMS – 1001.440(e)(4)
Under the previous rule, petitioners involved in a long-term opiate substitution program, such as methadone maintenance were not required to prove abstinence from the opiate substitute and instead were required to demonstrate stability in the program for at least a year. These persons were previously required to present documentation from their counselor and physician describing the nature of the program, progress, length of the program and prognosis.
Under the new rule the Secretary of State will utilize an Opiate Substitution form to be completed by the petitioner, physician and evaluator or substance counselor. Stability in the program for at least one year and abstinence from alcohol and all other drugs, together with all other requirements must still be met.
MEDICAL CANNABIS – 1001.440(e)(5)
Under the previous rule, petitioners prescribed medical cannabis were not required to prove abstinence from cannabis and instead were required to demonstrate stability for at least one year. These persons were previously required to present documentation from their counselor and physician describing their illness or condition, progress and status in the program, length of the program and prognosis.
Under the new rule the Secretary of State will utilize a Medical Cannabis form to be completed by the petitioner, physician and evaluator or substance counselor.
If the petitioner is High Risk (Dependent), stability in the program for at least 6 months is required for a RDP and 12 months for reinstatement. All other requirements must be met including abstinence from alcohol and all other illegal drugs.
PRESCRIBED OPIATE MEDICATION – 1001.440(e)(6)
Under a new rule, petitioners who have prescribed opiate medication are not required to prove abstinence from the opiate and instead are required to prove that they are stable on the medication.
The Secretary of State will utilize an Opiate Medication form to be completed by the petitioner, physician and evaluator or substance abuse counselor.
If the petitioner is High Risk (Dependent) and has been diagnosed as dependent on the prescribed opiate stability in the program for at least 6 months is required for a RDP and 12 months for reinstatement. All other requirements including abstinence from alcohol and all other drugs must be met.