The Alcohol / Drug Revoked or Suspended Driver and Proceedings Before the Office of the Secretary of State

The Secretary of State's Office has undergone sweeping changes over the last 30 years as a result of increased enforcement and changes in the state’s DUI laws and a consequent increase in the number as well as length of revocations/suspensions; changes in public attitudes regarding alcohol‑related driving offenses; and stricter regulations and policies of the Office of the Secretary of State.

Provisions of the Illinois Vehicle Code, particularly as they relate to the revocation/suspension of drivers' licenses and driving privileges as well as the interpretation thereof by the courts has become increasingly complex. At the same time, the rules and regulations as well as the hearing procedures in the Secretary of State's office have likewise become complex and often bewildering. These factors, together with the restrictive consideration accorded to requests for relief have resulted in a relatively high rate of denial of such applications.

The provider cannot alter the general policies or attitudes of the Secretary of State as they relate to its approach to the DUI problem and its restrictive consideration of requests for relief from orders of revocation/suspension. These are matters to be addressed, if necessary, legislatively; on administrative review; or subsequent appeal. The provider can, however, be prepared with a detailed knowledge and understanding of the applicable statutes, rules, regulations and policies of the Secretary of State's Office and thereby assist the deserving driver is obtaining favorable consideration of his or her petition.

While the alcohol/drug evaluation and treatment documentation are but one component in the application process, the documentation is the most important component, together with the client’s testimony at the time of the hearing.

Providers cannot function effectively in this environment without a good working knowledge of the applicable laws, rules and policies governing the process. These materials are designed to hopefully assist the provider in that regard.

1. Statutory Grant of Authority

The Secretary of State's Office exercises quasi‑legislative (rulemaking) powers as well as quasi‑judicial (adjudicatory) powers in the administration and enforcement of the provisions of the Illinois Vehicle Code.

The decision to grant or deny a restricted driving permit is permissive and not mandatory and before a restricted driving permit is issued, the Secretary of State must weigh the public interest against the hardship suffered by the applicant. Considerable discretion is given the Secretary.

The provider should closely question his/her client as to the basis for the revocation or suspension of a driver's license and privileges and in order to verify the information provided, should obtain a court purposes abstract of the client's driving record from the client. (This is, of course, required by DASA rules unless the client has an alcohol/drug related summary provided by a Secretary of State informal hearing officer).

The provider must obtain a history of alcohol/drug offenses that have occurred in foreign states. These offenses must include those that occurred and do not appear on the client’s Illinois court purposes record. The client or his attorney should contact the Secretary of State’s office and obtain a Problem Driver Pointer System (“PDPS) check of the client’s record to determine if there are out of state offenses. PDPS is a national data basis designed to check any driver’s foreign state ‘history’. If out of state offenses have occurred and are not accounted for by the provider, the client will be denied relief. Failure of the provider to include such out of state offenses can obviously negatively affect the client’s classification, drinking/drug use history and other information or conclusions contained in the evaluation and other documentation.

1. When a Hearing is Required

A hearing is always required where:

1. the order that has been entered against the client is the result of a mandatory revocation of the client's license which is indicated on the client's driving abstract by a type action code "01", e.g., a revocation for DUI;
2. the client's license has been revoked or suspended (depending on the accumulated point total as indicated by a type action code "02" or “03”, e.g. revoked/suspended for multiple moving violations;
3. the client is a second offender under the summary suspension law (12-month suspension as a result of submitting to testing or 36-month suspension as a result of refusing testing);
4. The client held a Monitored Device Driving Permit (MDDP) which has been cancelled as a result of the entry of a conviction or order of court supervision for the offense of driving while suspended, leaving the scene of an accident involving personal injury or death, DUI, reckless driving, violation relating to an ignition interlock device, fleeing or attempting to elude (misdemeanor or aggravated), street racing (misdemeanor or aggravated) or any offense for which alcohol or drugs is an element of the offense (and the use of a motor vehicle was involved) or unauthorized de-installation of a breath alcohol ignition interlock device (BAIID) and now wishes to seek a RDP.

2. Revocations vs. Suspensions

A revocation under Illinois law is, with certain exceptions discussed below, for a minimum period of one year and a maximum period that is indefinite. Reinstatement, contrary to common belief, does not occur automatically after the stated minimum mandatory period. Once a license is revoked, reinstatement will not occur until the Secretary of State, upon application and after an administrative hearing, makes a determination that to grant reinstatement will not endanger the public safety or welfare.

There are several exceptions to the 1-year minimum length of revocation stated above:

a. Persons convicted of two violations of DUI or a similar provision of a local DUI ordinance, leaving the scene of an accident involving personal injury or death), or reckless homicide, or similar out-of-state offenses, or similar offenses committed on a military installation within a period of twenty years (using the dates of commission of the offenses) may not make application for a license for a minimum period of five years from the effective date of the most recent revocation;

b. Persons convicted of three of the above offenses may not make application for a license until after the expiration of ten years from the effective date of the most recent revocation;

c. Persons convicted of a fourth or subsequent violation of the above offenses may not make application for a license. 625 ILCS 5/6-208(b)4. (Note that in determining whether the person has a fourth or subsequent conviction, the Secretary of State may include out-of-state DUI convictions. However, the Secretary of State interprets this provision to be applicable only to those persons whose fourth or subsequent offense occurred on or after the effective date of the law, to wit, January 1, 1999.

If the person is a bona-fide out of state resident than an application may be made for reinstatement 10-years from the date of revocation. Note that if the person re-establishes Illinois residency, then the revocation will be re-entered;

d. Persons convicted of the offense of leaving the scene of an accident involving personal injury or death may make application for a license after the expiration of three years from the effective date of the revocation;

e. Persons convicted of the offense of reckless homicide (or aggravated DUI involving death) may make application for a license after the expiration of two years from the effective date of the revocation or after the expiration of 24 months from the date of release from imprisonment, whichever is longer. If a person is convicted of the offense of driving while license revoked and the revocation was based on a conviction of reckless homicide (or a similar provision of another state), the person may not apply for a license or permit for a period of three years from the date of the most recent revocation.

f. Persons convicted of a third or subsequent violation of driving while revoked when the basis for the revocation was a conviction for the offense of reckless homicide or a similar provision of a law of another state may not seek reinstatement, i.e., the individual faces a lifetime revocation. In an apparent legislative oversight, this provision does not include revocations based on the offense of aggravated DUI involving a fatality;

g. Persons under the age of 21 who have revoked licenses based on a conviction for driving under the influence of alcohol and/or drugs may apply for restricted relief after 1 year from the date of revocation and thereafter reinstatement.

A suspension may be distinguished easily from a revocation in that it automatically terminates after a designated period of time, not to exceed 12 months (upon payment of a reinstatement fee), unless otherwise extended for driving while license suspended or under the provisions of the Illinois summary suspension law.

Providers should remember that those who are not revoked but only suspended may, under certain circumstances may still be required to have an evaluation. Examples include those with cancelled MDDPs, those with suspensions for fraudulent IDs/licenses where the purchase or attempted purchase of alcohol was involved, suspensions for possession of alcohol by a minor, those with suspensions under the zero tolerance law and those who are seeking relief for a suspension under the summary suspension law governing accidents involving death or personal injury.

C. Types of Hearing.

There are two (2) types of hearings for available to those seeking driving relief. The attorney representing the revoked or suspended driver must first determine whether a formal hearing is necessary or whether the client is eligible for an informal conference which may result in a more expeditious resolution of the client's problem, without diminishing or delaying the chances for a favorable determination.

1. Formal and Informal Hearings

A formal hearing is always required where:

1. The client has multiple DUI convictions or implied consent violations (not including zero-tolerance suspensions)arising out of different occurrences (including those which have occurred out of state and do not necessarily appear on the client’s Illinois driving record). Note that DUI supervision dispositions and convictions or supervisions for reckless driving (reduced from DUI) do not constitute a disqualification for those seeking an informal hearing under this rule;
2. The client's license and/or privileges are revoked, suspended or cancelled as the result of an offense involving a death;
3. The client is seeking the modification or rescission of a discretionary order of suspension or revocation;
4. The client’s license is revoked pursuant to 625 ILCS 5/6-205(a)(1) (e.g., as the result of a pending charge of reckless homicide (aggravated DUI involving death);
5. The client is required to have a BAIID device as a condition of receiving driving privileges; or
6. The client has a statutory summary suspension and is seeking a RDP after the cancellation of the MDDP as a result of violation of the program rules.

D. Issues at a Hearing

Illinois Courts have had an opportunity to consider the issues to be addressed when determining whether relief from an order of revocation or suspension was proper.

The Courts have identified the main issues to be considered as:

1. The paramount interest is the Secretary of State's statutory duty to protect the public safety and welfare, i.e., the degree of risk posed by returning the petitioner to the highways; and
2. The degree of hardship suffered by the petitioner as the result of the loss of driving privileges.

Since the legislature has expressly given the Secretary of State discretion under the statute, the Secretary of State must exercise the discretion based upon the public interest. This means that the Secretary of State should not issue a restricted driving permit unless he has determined that granting the applicant a restricted driving permit will not endanger the public safety or welfare, then the Secretary of State should carry out the purpose of the statute by granting the applicant a restricted driving permit.

A. Introduction

Generally, the phrase "alcohol/drug related hearings" includes those matters where the underlying basis for the Order of Revocation or Suspension is related to:

(1) Conviction and revocation for driving while under the influence of alcohol, other drugs, or combination thereof.; or

(2) A statutory summary suspension or suspension due to an accident involving death or a type A injury or the zero tolerance law;

(3) a current suspension or revocation for a non-alcohol-related reason but the client’s license has previously been suspended or revoked within the last five years for a cause defined in 1 or 2 above and the person was not previously required to submit an evaluation;

(4) when there is credible evidence that there has been an arrest or implied consent suspension for boating or snowmobiling under the influence within the last 5 years or the petitioner has had an alcohol- or drug-related criminal record

(NOTE: Under number (3) and (4) above, an investigative evaluation must be performed, rather than a more extensive alcohol/drug uniform report, and the client must only complete risk education or treatment if recommended by the evaluator.).

B. Documentary Evidence

1. Alcohol Evaluations

The client shall have an alcohol/drug evaluation completed by an agency licensed by the Illinois Department of Human Services, Division of Alcoholism and Substance Abuse (“DASA”) and meeting the requirements of the Secretary of State and DASA. This evaluation cannot be more than six (6) months old as of the date of hearing. In the event the applicant has an evaluation that is more than 6 months old, then an updated evaluation must be completed by the same or agency or by the agency that provided the client’s treatment. If the agency that conducted the original evaluation or treatment has transferred the client’s file to another agency (and such transfer has been approved by DASA) due to closure, etc. of the originating agency then the agency now in lawful possession of the client’s file may provide the update evaluation.

In many cases the client has had a previous hearing in the Secretary of State's Office. If this is the case, it is essential that the provider obtain a copy of the previous evaluation, treatment documentation and any other documentation submitted at the hearing as well as the order (if the hearing was a formal hearing) or the letter of denial (if the hearing was an informal hearing). These documents can be obtained by simply having the client execute a document authorizing release of the information and submitting it to the Secretary of State’s Office, Department of Administrative Hearings, Support Services Division. The Secretary of State will then notify the requestor of the cost. These documents will assist the provider in verifying the consistency of evidence to be presented at any new hearing. In the event the person has been denied relief at a prior hearing (formal or informal), the provider is required to prepare a letter addressing the reasons for the prior denial.

2. Risk Education

For those individuals other than those classified as High Risk the client shall have completed and passed a risk education course offered by an agency licensed by DASA and provide written certification of completion of such a course. This course must have been completed since the client's last alcohol related violation.

3. Evaluation Classifications and Requirements

Effective November 1, 1992, DASA adopted new rules that created a new classification system for DUI offenders and minimum requirements to be fulfilled for each classification level. These classifications and treatment requirements, as subsequently amended, have been adopted by the Secretary of State. 92 Ill. Administrative Code, ch. II, sec. 1001.440. The classifications and the recommendations applicable to each classification as currently in effect under the Secretary of State regulations are as follows:

Level I - Minimal Risk

Defendants classified at this level must have

1. no prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
2. a blood-alcohol concentration (BAC) of less than .15 as a result of the arrest for DUI; and
3. no other symptoms of substance abuse or dependence.

Level II - Moderate or Significant Risk

1. Moderate Risk

   Defendant classified at this level must have

   1. no prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
   2. a BAC of .15 to .19 or a refusal of chemical testing as a result of the arrest for DUI; and
   3. no other symptoms of substance abuse or dependence.
2. Significant Risk

   Defendants classified at this level must have

   1. one prior conviction or court-ordered supervision for DUI or one prior statutory summary suspension or one prior reckless driving conviction reduced from DUI; and/or
   2. a BAC of .20 or higher as a result of the most current arrest for DUI and/or
   3. other symptoms of substance abuse.

Level III - High Risk

Defendants classified at this level must have

1. symptoms of substance dependence; and/or
2. two prior convictions or court-ordered supervisions for DUI or two prior statutory summary suspensions or two prior reckless driving convictions reduced from DUI within a ten-year period from the date of the most current (third) arrest.

4. Classification Recommendations and Required Documentation

Level I - Minimal Risk

Completion of a minimum of ten hours of alcohol and drug risk education.

Level II - Moderate Risk

Completion of a minimum of ten hours of alcohol and drug risk education and a twelve hour early intervention program.

Level II – Significant Risk

Completion of a minimum of ten hours of alcohol and drug risk education and a outpatient treatment program (minimum twenty hours) followed by an aftercare plan.

Level III - High Risk

For defendants with identified symptoms of dependence:

1. completion of an intensive outpatient or outpatient substance abuse treatment program (minimum of 75 hours) followed by an aftercare plan, or
2. completion of a residential or inpatient substance abuse treatment program followed by an aftercare plan.

For defendants without identified symptoms of dependence:

• completion of an outpatient treatment program (minimum of 75 hours) followed by an aftercare plan.

For High-Risk-Non Dependent individuals the program must provide a separate letter containing a detailed explanation of why dependency has been ruled out. See 92 Ill. Administrative Code, ch.II, sec. 1001.440 (b)(4).

Note: If the treatment provider does not require treatment for an individual classified as Moderate, Significant or High Risk to complete at least the minimum treatment requirement then a rationale for that decision must be provided. This is referred to as a Treatment Waiver. See 92 Ill. Administrative Code, ch.II, sec. 1001.440 (b)(6).

5. Character Reference and Drinking Habit Verification Letters

Character reference letters and letters verifying the client's current drinking habits should be prepared. A minimum of three (3) letters are required if the client has been classified as High-Risk-Non-Dependent but are suggested even if classified at a lower level. Such letters should indicate the relationship of the writer to the applicant, how often he/she sees the client, the client's current drinking habits as well as past habits if they have changed and if so, when. Also the writer should indicate why he believes the applicant's habits have changed and give general opinion as to the applicant's maturity, responsibility and risk to receive future alcohol related violations. All letters should be fully consistent with the information contained in the assessment.

6. Abstinence/Drinking Habit Verification Documents

In the event the client has been classified as High Risk (Dependent), a minimum of three (3) letters verifying the client's abstinence meeting Secretary of State requirements. If the client has been classified as High Risk (Non-Dependent) three (3) letters verifying the client’s abstinence or non-problematic drinking pattern must be provided. Preparation of letters are suggested even if the client is presenting at a lower classification. Counsel should be aware that the Secretary of State rules provide that in cases of applicants with a clinical impression of alcoholism/chemical dependence, a minimum period of twelve (12) months of abstinence is required with certain limited exceptions. 92 Ill. Administrative Code, ch. II, sec. 1001.440(e)(f).

7. Documentation of Self‑Help Group

Involvement

If the client has been classified as High Risk-Dependent and the client is a member of Alcoholics Anonymous (AA) or other self‑help group, in addition to the three (3) abstinence letters required above, the client should provide at least three (3) letters from program co‑support group members meeting the requirements of 92 Ill. Administrative Code, ch. II, sec. 1001.440(g) ‑ (i). A restricted driving permit may be issued to allow an applicant to drive to and from such self‑help group meetings or counseling and accordingly counsel should not neglect to request such relief if appropriate. 92 Ill. Administrative Code, ch. II, sec. 1001.440(j).

(Note: the SOS provides forms that may be completed in lieu of letters. These forms are available on the SOS website at www.cyberdriveillinois.com.)

In O'Neil v. Ryan, 301 Ill. App. 3d 392, 703 N.E.2d 511, 234 Ill. Dec. 650 (1st Dist. 1998), the plaintiff had been classified as Level III (dependent). The Secretary of State found that the plaintiff had not established a sufficient ongoing support system. The plaintiff claimed that his support system consisted of (a) participation in athletic activities with his brother and (b) talking to family members when he has problems or feels the urge to drink.

The court found that such "unstructured and sporadic contact does not fit the definition of support/recovery program found in regulations." 703 N.E. 2d at 515.

[P]roviding support for an alcoholic involves much more than just providing a willing ear when he has the urge to talk or filling his time with new activities. A proper support/recovery program provides a framework which helps the alcoholic identify the signs of relapse and gives the alcoholic the tools to prevent it. Neither plaintiff nor the members of his support group have described such a framework. Id.

This case strongly suggests that in the absence of a strong, principled program specifically designed to help the recovering alcoholic avoid relapse, it will be rejected by the Secretary of State as not meeting the regulation's requirement of an ongoing support/recovery program for those classified as High Risk (Dependent).

If the client is not involved in such a structured, organized and recognized program such as AA or NA, the client will be required to identify what program the client has established and how it accomplishes the goal of keeping the client abstinent. This again must be documented by three (3) independent sources who can testify at a hearing or provide written documentation in the form of letters which meet the requirements found at 92 Ill. Administrative Code, ch. II, sec. 1001.440(i)(1).

8. Treatment Records

Copies of any treatment records including a treatment verification form, discharge summary, treatment plan, continuing care plan and continuing care status report are necessary where the client has completed a program of counseling or other intervention dealing with a previous alcohol/drug related problem. Treatment documents are required for all levels other than Minimal Risk individuals. 92 Ill. Administrative Code, ch. II, sec. 1001.440(m).

9. Documentation for Employment, Medical or Educational Relief

Completion of a letter from the client's employer must be provided when the client's petition includes a request for employment relief. This letter should comply with the requirements as set forth in 92 Ill. Administrative Code, ch. II, sec. 1001.420(b)(1). If the person seeks medical, child care, elder care or educational relief the documentation of any of these requests should comply with 92 Ill. Adm. Code, ch. II sec. 1001.420 (b)(2-4).

If the client is required to demonstrate an undue hardship for employment purposes in order to obtain a RDP (i.e., the client is not eligible for reinstatement) then the employer should document the nature of the undue hardship as part of its letter.

C. Preparation of Testimony

The practice of attempting to prepare a client's testimony immediately prior to a hearing should be avoided. Instead counsel should take appropriate steps to review and prepare the testimony of the client as well as that of any witnesses well before the hearing.

The client should be acquainted by counsel with all procedural aspects of the hearing and otherwise be acquainted in general with the atmosphere he can expect to encounter. The overall aim should be to reduce the apprehension of the client as much as possible and thereby improve the client's performance at the time of hearing.

1. Review of Alcohol Assessment

It is of the utmost importance is that the client reviews the alcohol assessment and treatment documentation with counsel to verify its accuracy and completeness. Any errors or omissions should be noted and same should be corrected by the program who prepared the document.

The client obviously should be prepared to testify consistently with all information contained in the evaluation including:

1. Facts surrounding all alcohol related arrests (including those where supervision was granted or the offense was reduced to reckless driving);
2. the client's past history regarding his use of alcohol/drugs;
3. the client's current use of alcohol/drugs;
4. the history of any alcohol/drug treatment received by client;
5. the history of involvement in any self help support program such as Alcoholics Anonymous (for High Risk – Dependent individuals)

2. Testimony as to Undue Hardship

The client should be thoroughly prepared to testify as to the hardship suffered as the result of the loss of his license and privileges (if applying for hardship relief and not otherwise statutorily eligible for reinstatement in which case hardship need not be shown). In this regard see the definition of 'undue hardship' at 92 Ill. Administrative Code, ch. II, secs. 1001.410 and 1001.420(d). Also see 92 Ill. Administrative Code, ch. II, sec. 1001.420(i) and 1001.430(i).

3. Corroborative Testimony

In some cases, counsel may wish to call a witness to corroborate the testimony of the client, particularly as it relates to the client's history of alcohol/drug use. The witness should be an individual who has known the client for a significant period of time and who can testify as the client's drinking habits, particularly since the last alcohol‑related arrest of the client occurred. Additionally, this witness should also be interviewed by counsel in advance of the hearing to determine the consistency of the witness' potential testimony with that of the client and the information contained in the alcohol evaluation. Counsel should remember that any witness to be called will be excluded from the hearing until called to testify.

However, counsel should be mindful of the fact that since character / abstinence / drinking habit verification letters containing this same information are often required and admissible for this same purpose, it may not be ‘tactically’ advantageous to call a witness who then would be open to cross-examination.

A. Introduction

Generally, the phrase "non‑alcohol related hearings" includes those matters where the underlying basis for the Order of Revocation or Suspension is related to:

1. Suspension or revocation as the result of conviction of three (3) or more moving violations within a twelve (12) month period. 625 ILCS 5/6 206(a)(2); or
2. Suspension or revocation as the result of conviction of multiple moving violations. 625 ILCS 5/6 206(a)(3).

Other, less frequently seen causes for non‑alcohol related suspensions and revocations appear at 625 ILCS 5/6‑206(a)(1)‑(42).

Initially, if the suspension or revocation is based upon a conviction of a moving violation, counsel should satisfy himself or herself that no basis to vacate the conviction exists in the court of venue, e.g., where there has been an ex‑parte default finding against the client. If such a basis does exist, then it may be possible to obtain a rescission of the order of suspension or revocation without the need for an administrative hearing.

B. Preparation of Documentary Evidence

In the author's experience, non‑alcohol related suspensions or revocations of a client's driver's license is usually the result of either inherently poor driving habits, a conscious disregard for the laws governing the operation of motor vehicles or a combina­tion of both. Therefore, the preparation of documentary evidence to meet and carry the petitioner's burden of proof i.e., that to issue driving privileges will not endanger the public safety and welfare, should be with this goal in mind.

The type of evidence that counsel should consider introducing is as follows:

1. Remedial Efforts

Completion of a driver remedial course or defensive driving course by the client. Some websites, e.g., www.nsc.org allow the completion of such a course on-line. See 92 Ill. Administrative Code, ch. II, sec. 1001.420(h), regarding evidence of efforts at rehabilitation or reform of past driving habits and Secretary of State's authority to require such attendance. 625 ILCS 5/6‑206(c)(3);

2. Character Reference Letters

Character reference letters stressing such things as the client's degree of maturity, responsibility, present general attitudes and what changes have occurred in these areas since the revocation or suspension of his/her privileges;

3. Documentation of Request for Employment, Medical or Educational Relief

Completion of a letter from the client's employer, doctor or school must be provided when the client's petition includes a request for employment, medical or educational privileges. This document should comply with the requirements as set forth in 92 Ill. Administrative Code, ch. II, sec. 1001.420(b)(1).

C. Preparation of Testimony

As above the preparation of the client's testimony and any witnesses to be called should be completed well before the hearing.

1. Prior Driving Record and Change in Attitude

The client should be familiar with his driving record including the nature and facts or circumstances surrounding each violation.

Since, to a very great extent, the success or failure of the petition for relief will depend upon the client's demeanor and his ability to communicate such matters as his change in maturity, responsibility and current attitudes, the client should be thoroughly prepared to testify in detail as to these matters in a credible fashion. See 92 Ill. Administrative Code, ch. II, sec. 1001.420(e).

2. Testimony as to Undue Hardship

Where the client is applying for hardship relief, he should be prepared to testify to facts necessary to sustain a finding by the Secretary of State that there exists an undue hardship as the result of such suspension or revocation of his license. Note again, that an undue hardship need not be shown if the person is otherwise eligible for reinstatement and a restricted permit is being sought as a probationary device. 92 Ill. Administrative Code, ch. II, sec. 1001.420(i) and 1001.430(i).

3. (Corroborative Testimony

The preparation of a witness to testify on the client's behalf is generally not necessary if a letter from such a witness is available in meeting the client's burden of proof. The witness's testimony or letter will be important in verifying the client's maturity and sense of responsibility and general opinion as to the client's ability to operate a motor vehicle in conformity with the law.