Negotiating the Illinois Administrative and Vehicle Codes in connection with Secretary of State Driver s License Hearings

Transcription

1 Negotiating the Illinois Administrative and Vehicle Codes in connection with Secretary of State Driver s License Hearings 1. Applicable administrative rules a. Secretary of State (SOS)-- 92 Illinois Administrative Code (IAC), Parts 1000, 1001, 1030, 1040 b. Division of Alcoholism and Substance Abuse (DASA)-- 77 IAC, Part 2060 c. Alcohol and Drug Evaluation Uniform Report- SOS/DASA interplay i. DASA form ii. Created using DUI Service Reporting System (DSRS) iii. Courts and SOS use this form as the starting point iv. The data gathered and inputted determines offender s risk level v. Risk level determines the minimal level of intervention required d. SOS rules govern the evidence to present at the hearing, which varies depending upon the risk level e. DUI is a political football. Laws are changed, statutory provisions are shuffled around 2. Decision making process a. A single (often non-attorney) hearing officer hears the case, rules on motions, admissibility of evidence b. Hearing officer submits findings of fact, conclusions of law and a proposed disposition c. Not first circulated for comment d. Provision of Administrative Procedure Act requiring circulation of proposed decision (5 ILCS 100/10-45) does not apply to hearings under 625 ILCS 5/2-118, as Secretary is sole decision maker. Donnelly v. Edgar, 117 Ill. 2d 59, 509 N.E.2d 1015, 109 Ill. Dec. 176 (1987) 3. Types of hearings a. Informal hearing (92 IAC ) i. No appointment required ii. Numerous informal hearing facilities throughout the state iii. No transcript iv. No Secretary of State file is available during the hearing v. No legal representative for SOS vi. No cross examination vii. No live witnesses other than petitioner viii. No oath ix. Informal hearing officer takes the lead on questioning x. Not final so no appeal xi. No filing fee xii. May have a new hearing (formal or informal) every 30 days xiii. Subsequent formal hearing, if desired, is de novo and not an appeal of an unfavorable informal decision xiv. Those eligible for informal may opt for formal xv. Limited availability Page 1 of 20

2 1. Current revocation did not occur due to a fatal accident 2. No prior DUI-related suspensions or revocations. Must include out-of-state dispositions identified via Problem Driver Pointer System (PDPS) 3. Not contesting and/or seeking to modify the license sanction 4. Not BAIID-eligible See, part 11 below 5. However, informal available to renew a Restricted Driving Permit (RDP) issued at a formal hearing if: a. Permit is not more than 30 days beyond its expiration date and b. Permit has been in effect for at least 75% of the length of time for which it was issued (typically one year) 6. SOS retains discretion to require a formal hearing, sparingly invoked b. Formal hearing (92 IAC ) i. Under oath ii. Witnesses subject to cross examination iii. Full administrative record is created iv. SOS file will be available during the hearing v. Final and appealable within 35 days (625 ILCS 5/2-118; 735 ILCS 5/3-103) vi. $50.00 filing fee vii. Hearings must be requested in writing and are scheduled in advance viii. Hearings in Chicago, Joliet, Springfield and Mt. Vernon only ix. Subsequent formal hearings 1. 75% rule if granted RDP (92 IAC (i)) 2. A new hearing may be held 90 days after the prior hearing if the decision was unfavorable (92 IAC ) 3. Not de novo 4. Secretary takes official administrative notice of prior orders, findings and other documents on file (92 IAC e)) 4. Barriers to obtaining an administrative hearing a. No relief may be granted with a pending ticket (92 IAC (g), (h)). However, you may insist on a hearing. b. Non DUI related suspensions (failure to appear, unpaid traffic fines, parking ticket or toll way suspensions, child support suspensions) must be resolved prior to receiving, and in some cases, applying for, driving relief c. Four DUI convictions, at least one of which arose out of an arrest after January 1, 1999, creates a lifetime ban on any type of driving relief i. 92 IAC (o), 625 ILCS 5/6-208(b)4., 625 ILCS 5/6-205(c)(1), 6-206(c)3. ii. Out-of-state convictions Page 2 of 20

3 1. Include all convictions on driving abstract 2. For purposes of the lifetime ban, even include all out-ofstate convictions that are only identified via PDPS (Girard v. White, 356 Ill. App. 3d 11, 826 N.E.2d 517, 292 Ill. Dec. 376 (1 st Dist. 2005)) iii. Supervision is not a conviction d. A second DUI conviction and revocation results in a one-year waiting period before being entitled to request an RDP (625 ILCS 5/6-205(c)(6)) e. If the DUI occurred at a time the driver was under 21, the revocation is for 2 years, with no RDP during the first year (625 ILCS 5/6-205(d)(1)) f. Driving on a revoked license where the underlying revocation stems from a reckless homicide conviction: i. A first conviction leads to a revocation for 3 years with no right to an RDP during that entire time (625 ILCS 5/6-208(b)1.5.) ii. A second conviction results in a waiting period of 5 years following the later of the revocation date or release from prison (625 ILCS 5/6-205(c-6) and 625 ILCS 5/6-208(b)2.5.) iii. A third or subsequent conviction causes a lifetime ban (625 ILCS 5/6-208(b)5, 625 ILCS 5/6-205(c-7), (d-5)) iv. People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003) held the reckless homicide statute unconstitutional, so that over time, the reckless homicide /driving revoked enhancements will become less of a factor due to a dwindling number of reckless homicide offenders g. Following a conviction for reckless homicide or aggravated DUI resulting in death, the driver may not apply for any type of driving relief until the later of 2 years following the revocation or the driver s release from incarceration (625 ILCS 5/6-208(b)1. and 6-103(15)) h. A non-first offender, as defined in 625 ILCS 5/11-500, may not apply for a permit while the statutory summary suspension (SSS) is in effect (625 ILCS 5/ (g)) i. First offender 1. No prior a. DUI conviction or b. DUI supervision or c. Out-of-state refusal suspension under 625 ILCS 5/ and 6-206(a)(6) or d. SSS unless: i. There was a breath test and ii. The driver was found not guilty of the DUI iii. NG required; dismissal not sufficient (People ex rel. Edgar v. Topping, 204 Ill. App. 3d 518, 149 Ill. Dec. 701, 562 N.E.2d 8 (3d. Dist. 1990)) 2. Within the past 5 years Page 3 of 20

4 a. Measured from disposition date of first criminal offense to commission date of second offense (People v. Stothoff, 208 Ill. App. 3d 500, 567 N.E.2d 420, 153 Ill. Dec. 462 (1990)) b. For a case in which the prior disqualifier is an SSS, the beginning of the five years is measured from the start date, not termination date, of SSS (People v. Kotz, 223 Ill. App. 3d 524, 165 Ill. Dec. 889, 585 N.E.2d 620 (3 Dist. 1992)) ii. Non-first offender who refuses is subject to a three-year wait before seeking driving relief (625 ILCS 5/ (a)3.) iii. Non-first who blows is subject to one year wait before applying (625 ILCS 5/ (a)4.) i. Hearing available for first offender who is under an SSS (92 IAC a) 4)) i. Testing causes a six month suspension (625 ILCS 5/ (a)2.) ii. Refusal twelve months (625 ILCS 5/ (a)1.) iii. Formal hearing may be required See, part 11 below j. No RDP may be granted to an applicant for the purpose of operating a Commercial Motor Vehicle. 625 ILCS 5/6-205(j) and 6-206(f) 5. General standards and statements of principle (92 IAC ) a. Standard is clear and convincing evidence b. Must show that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare 625 ILCS 5/6-208 c. SOS subscribes to the disease concept of alcoholism, as defined in the Alcoholism and Other Drug Abuse and Dependency Act [20 ILCS 301/1-10] and incorporates by reference the Jellinek chart i. DSM IV 1. 7 dependency symptoms; 3 or more signifies alcohol dependency aka alcoholism 2. 4 abuse symptoms ii. Abstinence alone not sufficient to carry burden d. Procedures i. Written request for hearing (625 ILCS 5/2-118) 1. Notice must go out within 20 days of request 2. Hearing must be set within 90 days of request 3. Typical time is 6-8 weeks ii. Official notice of prior files 1. Must review prior hearing files 2. Prior hearings not always evident from driving record and clients are not reliable reporters iii. Opening and closing arguments are usually waived iv. SOS goes first v. Rules in are very loosely applied in DUI hearings vi. Much discussion on continuance versus withdrawal boils down to whether you will have to pay another $50.00 hearing fee Page 4 of 20

5 vii. Requests to cancel hearings at the last minute are nearly automatically granted viii. Written decision 1. No more than 90 days following the hearing (625 ILCS 5/2-118) 2. Typical time is 4-6 weeks 6. Nuts and bolts of presenting the case a. Gather the following as soon as retained i. Court purposes driving abstract ii. Law enforcement sworn report (SSS report) available at Driver Services division of SOS iii. PDPS, which SOS will run upon request iv. Prior hearing documents on file with SOS (order from Support Services) b. Sit in on some hearings c. Substantially relaxed rules of evidence d. Hearing will include the hearing officer and SOS attorney e. Hearing officer unlikely to be an attorney i. Must overcome lay thinking, unwritten rules, preconceived notions, group-think, agendas, pet peeves, and check-all-theboxes mentality ii. Form over substance, trees lost through the forest f. Audio recording g. Crisp, clear and direct presentation i. Keep client out of the weeds ii. Prepare client for testimony 1. Often below average-functioning 2. Uncomfortable in public forum iii. No rambling or long-winded stories unless absolutely essential iv. In all cases, a conviction is dispositive of the guilt of a petitioner of the offense that caused the revocation (92 IAC a)). You cannot re-try the DUI. v. Client is the supplicant not the applicant. vi. Client s or your hostility is counterproductive 7. Risk classifications (77 IAC (g)) a. Minimal i. One DUI disposition (92 IAC ) 1. Includes DUI conviction, supervision, DUI reduced to reckless, SSS, fatality in which alcohol/drugs were a factor, or implied consent (6-206(a)(31)) suspension arising from separate incidents 2. Includes out-of-state offenses, regardless of whether the offense is on the Illinois driving record 3. Does not include illegal transportation or zero tolerance (although they must be reported on the evaluation) Page 5 of 20

6 4. Evaluators do not always understand the above, causing misclassifications ii. Consent to chemical test (breath or blood) iii. BAC less than.15 iv. No DSM abuse or dependency symptoms b. Moderate i. One DUI disposition ii. Refusal of testing or BAC of between.15 and.19 iii. No abuse or dependency symptoms c. Significant i. Two DUI dispositions and/or ii. One DUI disposition with a BAC reading of at least.20 and/or iii. Any abuse symptom(s) and fewer than three dependency symptoms d. High risk, nondependent i. Fewer than three dependency symptoms ii. Two or more DUI dispositions with a period of 10 years prior to the most current DUI disposition e. High risk, dependent i. 3 or more dependency symptoms ii. Driving record never controls this classification 8. Minimum rehabilitation requirements for each risk level (77 IAC (h)) a. Minimal risk i. Requires 10-hour Driver Risk Education (DRE) ii. DRE cannot be waived iii. DRE, where required, must have been completed after the most recent DUI disposition b. Moderate risk i. DRE and ii. 12 hours of early intervention 1. Low level mode of treatment 2. Evaluator may waive early intervention by providing a clinical rationale c. Significant risk i. DRE and ii. 20 hours of substance abuse treatment and iii. Completion of all requirements of the continuing care plan iv. Evaluator may waive primary treatment and continuing care or reduce the hours by providing a clinical rationale d. High risk (dependent and nondependent) i. 75 hours of treatment ii. Compliance with continuing care plan iii. Evaluator may waive or reduce the hours by providing a clinical rationale 9. Required documentation (92 IAC ) a. Uniform report Page 6 of 20

7 i. New form effective February 1, 2012 ii. Old form may have to be supplemented to include necessary information such as non driving related alcohol and drug offenses, operating a boat or snowmobile under the influence, out-of-state DUI iii. Detailed chronology of alcohol and drug use are part of new form, must be an addendum to old form iv. Must identify all BAC readings for all DUI and zero tolerance arrests v. Is considered current for 6 months from its completion, not starting, date vi. The Uniform evaluation must discuss the most recent DUI disposition or it is not valid vii. The evaluator and the patient must date and sign all evaluations b. Updated evaluation i. SOS-developed form 1. Verbose and requires close reading 2. Corroborative interview is required for update 3. Effective for 6 months, measured from its completion, not starting, date ii. Only the Uniform evaluation and the first update must include a detailed discussion of the circumstances surrounding the most recent DUI disposition iii. The agency that performed the Uniform or at which the petitioner obtained treatment may conduct the update 1. If file transferred to another agency, that agency may perform update 2. An agency that is only involved in providing early intervention (12 hours) may not conduct an update 3. An evaluator who reclassifies to a level that differs from the Uniform must provide a detailed explanation for doing so 4. A reclassification to a higher risk level requires: a. A Treatment Needs Assessment (TNA) or waiver b. Proof of completion of treatment or other rehabilitative activity if no waiver 5. No update required after three years of driving on a permit for a petitioner who is classified as high risk c. Proof of completion of early intervention (12 hours) i. The dates early intervention began and ended ii. The number of days or hours involved with the intervention process iii. A summary discussion of the intervention provided and its outcome d. Documentation for treatment (20 or 75 hours) i. SOS Treatment Verification form Page 7 of 20

8 ii. Individualized treatment plan iii. Discharge summary iv. Continuing care plan v. Continuing care status report e. Driver Risk Education (10 hours) is documented with a standardized certificate of completion f. Additional requirements for high risk, non dependent i. Evidence from no fewer than three independent sources of at least 12 consecutive months of current non-problematic use of alcohol 1. Letters rather than testimony are the norm 2. Abstinence is not required although is acceptable ii. A detailed explanation by the treatment provider as to why dependency was ruled out iii. Evidence that the cause of the high-risk behavior has been identified, treated and resolved g. High risk, dependent (alcoholic) i. Evidence from no fewer than three independent sources of at least 12 consecutive months of current abstinence from alcohol and all illegal drugs ii. Support/recovery program (92 IAC ) 1. Activities recovering alcoholics have incorporated into their life styles to help support continued abstinence 2. Documented from at least 3 members of the support program (92 IAC ) a. Alcoholics Anonymous is the most widely recognized traditional recovery program b. Document with at least 3 letters from fellow members including sponsor 3. Non-traditional support programs (92 IAC ) a. Regular and frequent involvement in religious or other activities which have a distinct and positive effect on an individual's continued abstinence b. Identify what that program is and explain how it works and keeps individual abstinent i. Family/friends/neighbors ii. Church iii. Working environment iv. Fitness v. Volunteer work c. Content of letters i. Relationship to petitioner ii. How long known iii. Have often see iv. What role writer plays in recovery v. What changes they have seen vi. Coaching usually required Page 8 of 20

9 4. Evaluator endorsement of non traditional required if there was a prior recommendation to attend AA h. Unnecessary documents for hearing a. SR 22 (insurance) b. Letter from employer unless it s a hardship case (See, part 10 below) where it can be helpful c. Driving record d. Good guy letters e. AA sign-in sheets f. Maps of route to work 10. Periods of revocation a. See item 3 above for barriers to hearing b. Once beyond the barriers, 625 ILCS 5/6-208(b) governs i. During a revocation, only RDP, not full reinstatement, is available ii. Any relief during which full reinstatement is not available requires a hardship showing (See item 10 below) 1. Unless otherwise stated, a revocation is for one year (625 ILCS 5/6-208(a) 2. First conviction is a one-year revocation 3. Second conviction within 20 years of the first is a five-year revocation a. If beyond 20 years, second revocation is for one year b. But watch out for 625 ILCS 5/6-205(c)(6) i. Second or later conviction, no RDP available for one year ii. Applies regardless of time that has elapsed between convictions 4. Third conviction, regardless of time element, is a ten-year revocation 5. Fourth or later conviction before January 1, 1999 is tenyear revocation 6. Fourth or later conviction after January 1, 1999 is no driving relief ever 7. Court supervision does not count as a conviction c. Any time served on the SSS shortens the revocation period by an equal amount (625 ILCS 5/ (d)) 11. Special issues related to hearings where only eligible for RDP a. Hardship i. Hardship is not relevant if the petitioner is eligible for reinstatement (92 IAC (c) and 440(d)) ii. Focusing upon it will only reveal your ignorance 1. Often foremost in client s mind 2. Hardship secondary to public safety and welfare and is never enough alone to carry burden (92 IAC a)) Page 9 of 20

10 iii. Hardship must be undue not mere inconvenience (92 IAC ) iv. Ability to get to work does not negate hardship (Clark v. White, 343 Ill. App. 3d 689; 798 N.E.2d 412; 278 Ill. Dec. 310 (4 th Dist. 2003)) v. Fired, reprimands, progressive discipline, denial of promotions, lost overtime, extreme inconvenience to those providing rides, no reliable means of transportation, sales calls, not able to travel on the job, moved to bottom of union call list vi. Prospective employment vii. Employer letter not required but helpful if properly drawn b. Types of RDP S i. Employment 1. To and from 2. On the job 3. 6 days, 12 hours a. Overtime b. Emergency call c. Rotating days and hours ii. Support (actually a component of medical) 1. AA, church 2. 3 meetings a week maximum iii. Medical 1. Yourself 2. Family iv. Educational 1. Yourself 2. Family v. Daycare vi. No visitation permits but daycare permit will work if visitation starts or ends at daycare facility c. Assumption is that permits are abused if not closely monitored i. Verification from employer, school ii. Permit must match the point of departure iii. No frolic or detour iv. Stop for gas? v. SOS assumes people are driving without a license 12. Breath Alcohol Interlock Ignition Device (BAIID) applicability (625 ILCS 5/6-205(c) and 6-206(c)(3)) a. BAIID Multiple Offender BMO (92 IAC ) i. Two or more Illinois convictions 1. Interlock required for 365 consecutive days 2. Any vehicle petitioner operates or has an ownership interest in, even if not intending to drive the owned vehicle 3. BAIID required even if fully reinstated Page 10 of 20

11 ii. Out-of-state convictions, whether on abstract or not, cannot cause BMO iii. Supervision is not a conviction b. OR anyone with a combination of: i. An SSS and ii. A DUI revocation iii. Occurring two or more times iv. Within a 10-year period v. Of the most recent DUI vi. Arising out of separate incidents vii. Out-of-state convictions or refusal suspensions that show on the Illinois record will count viii. Those out-of-state convictions or suspensions uncovered via PDPS that do not show on the abstract do not count c. Non-residents are never subject to BAIID d. Exception for work-vehicles unless you/family own the business e. BAIID applies even if the conviction is drug-related f. SOS monitors compliance g. Monitoring Device Driving Permit MDDP (625 ILCS 5/ ) i. Replaced Judicial Driving Permit (JDP) ii. No court order iii. No evaluation or classes iv. Drive 24/7/365 v. 30 days of hard time vi. Only for first offenders vii. SOS has no discretionary authority as to issuance of MDDP viii. SOS does monitor compliance with program ix. Applies to drug-related DUI offenses too x. Exception for work-vehicles unless you/family own the business xi. Applies only during the period of SSS. After that, RDP is required xii. Cancelled if convicted of underlying DUI 1. BAIID required if convicted of DUI while MDDP-eligible (92 IAC a) 4)) unless a. Never obtain MDDP or b. Surrender MDDP prior to being revoked for the DUI or c. MDDP expires prior to conviction or d. SSS has expired, eligible for reinstatement, requests reinstatement only 2. BAIID required applicants must have a formal hearing (92 IAC c)) 13. Special considerations when dealing with a prior hearing a. Obtain all documents on file with SOS b. If documents not filed with SOS, don t worry about them c. Prior file resulted in reinstatement, a recidivist i. Special problem as they fooled the SOS once Page 11 of 20

12 ii. What s different this time? 1. Did petitioner lie before? 2. Did petitioner fail to follow the program in place at time of reinstatement? d. Prior file denial i. Evaluator must compose a written response to the denial issues unless a subsequent DUI in which case it s moot ii. Evaluators generally need attorney guidance in this situation iii. Do not just assume, they want him to be alcoholic e. Consistency i. New documents must either dovetail with prior documents on file or disclaim their validity with a detailed clinical rationale ii. Past symptoms are permanent unless evaluator explains them away iii. Clients frequently deny having a prior hearing even when they clearly have iv. How do you know if prior hearing 1. Type Action 78, 40, 50, 32, 33, 21, Prior revocation terminated ( Stop not in effect) 3. Client kept orders 4. Ask SOS as some entries may have been purged from court purposes abstract but remain in SOS database 14. Unfavorable decision at your hearing a. Appeal rarely worth it b. Understand what went wrong c. Explain to client d. Send back to evaluator e. Request a new hearing 15. Working with the evaluators a. Provide evaluators with what they need to complete their work properly i. Abstract, law enforcement sworn reports, prior denial decisions and documents previously submitted to SOS ii. Information about non driving-related alcohol and drug related criminal issues iii. Boat and snowmobile iv. Evaluator and client must understand what worked in court will not work at SOS 1. Guilt is established 2. Downplaying client s behavior is counterproductive 3. Your burden of proof 4. Never the solution a. OK to get drunk as long as you don t drive b. Wrong place wrong time/bad luck c. Police were picking on me because d. Never a big drinker 5. Tendency to minimize Page 12 of 20

13 b. Delicate balance between giving the evaluator guidance and stepping on their toes i. Most likely been to no or few hearings ii. No legal training iii. Not all evaluators are created equally; not even close iv. Cannot rely upon evaluator to complete the evaluation properly c. While not always an option, try to avoid using multiple evaluators and agencies. i. Breeding ground for inconsistencies ii. Creates paper chase 16. Factors in granting relief (92 IAC (e); 440(d)) a. No magic bullet b. Weight afforded to each depends upon the circumstances of the case c. At a minimum, be prepared to discuss i. Facts of all DUI dispositions ii. General information about other criminal offenses in which alcohol or drugs were a factor iii. Name game- abuse, dependency iv. Dependency symptoms 1. Must match evaluation 2. Nobody understands them d. Drinking chronology i. Year before most recent DUI ii. Patterns since iii. Any illegal drug use iv. Reasons for variances in typical patterns during the lifetime v. Prior periods of abstinence, reasons for them and why returned to drinking vi. Mostly educated guess work vii. Intentions about future alcohol and drug use e. What s the most important thing you learned in treatment i. Issues that led to repeated alcohol abuse, not just on the occasion of each DUI 1. For each time you get caught driving drunk, you have done so between 300 and 2,000 other times. (REALLY?) 2. How you deal with those triggers today in a way that does not involve alcohol ii. Lifestyle changes f. Support program if dependent i. AA ii. Non traditional g. Hardship if applicable h. Every hearing office and SOS representative has his and her must ask questions and own style, like any human being 17. Unwritten rules, myths, legends, inanities a. Ordered by court to abstain Page 13 of 20

14 i. Abstaining when court-ordered to do so is given little weight ii. Failing to follow court-ordered abstinence is frowned upon iii. Damned if you do, damned if you don t b. Abstaining while incarcerated i. Does not demonstrate ability to abstain in an uncontrolled environment ii. Disconnected from the reality of prison life/ease of obtaining contraband c. Driving without a license within a year of the hearing is an almost automatic disqualifier for driving relief d. Relief within the first 12 months of a DUI is rare, even when eligible for reinstatement i. Delay the revocation if possible ii. Have a solid case e. Best not to keep alcohol in the home or have a significant other who drinks f. Ticket while driving on permit usually results in a second permit rather than reinstatement, even a simple speeding ticket g. Buzz words, traps and Groucho ( You Bet Your Life ) i. Alcoholic who promises or guarantees not to drink again loses ii. Do not claim the DUI offenses were the only times drunk driving occurred iii. You were intoxicated at the time of every DUI and deserved what you got iv. Symptom trap v. Significant risk who 1. Denies having abused alcohol loses 2. Admits to being an alcoholic loses h. Remorse in fatality cases 18. Miscellaneous a. Favorable decision i. SR 22 ii. BAIID iii. Employment verification iv. Written, driving and vision exams v. Medical report (if required) vi. Reinstatement fee 1. $ Only accepted at time of reinstatement, not when issued permit vii. Most of it is on the checklist that accompanies the decision b. BAIID violations (92 IAC ) i. Notified of potential violation ii. Chance to respond iii. Accepted response ends the inquiry forever Page 14 of 20

15 iv. Rejected response will be noted in the file for future hearings if the violation consists of: or more unsuccessful attempts to start or 2. Failure to complete a running retest successfully or 3. If not required to abstain, BAC reading of.05 or higher or pattern of readings consistent with alcohol v. If one required to abstain (dependent) has a rejected explanation for BAC reading of.05 or higher or pattern of readings consistent with alcohol 1. Permit will be cancelled immediately 2. Barred from a new hearing for one year a. Must request a hearing to contest the cancellation within 60 days to undo cancellation and/or remove one year bar b. If admit to consuming alcohol, no right to contest cancellation vi. One-time only excuses 1. Mouthwash 2. Someone else was driving vii. Corroboration viii. Immediate cancellation for all risk levels 1. Tampering/circumvention 2. Law enforcement report of operating without BAIID 3. De-installation report from provider due to non payment of rental fees a. Unless driver notifies BAIID he is no longer using the device and b. Surrenders the permit to SOS within 7 days of deinstalling 4. Failure to submit monitoring report 5. A DUI arrest c. Youthful offenders i. Under 21 ii. Violation of Liquor Control Act of 1934 or similar local ordinance 1. Minor in possession 2. Under aged consumption 3. Under aged possession 4. Minor in a bar 5. Neither intoxication, nor driving, necessary for license sanctions (People v. Boeckmann, 238 Ill. 2d 1, 932 N.E.2d 998, 342 Ill. Dec. 537 (2010)) a. Sanctions i. 12 months was excessive (Webb v. White, 364 Ill. App. 3d 650, 850 N.E.2d 233, 302 Ill. Dec. 796 (4 th Dist.2006)) ii. Conviction Page 15 of 20

16 ILCS 5/6-206(a)(38) IAC Minimum of six months b. Supervision i. 625 ILCS 5/6-206(a)(43) ii. 3 months c. Try for diversion program d. RDP available i. Investigative Evaluation ii. Undue hardship iii. Fake ID 1. Violations of 625 ILCS 5/6-301 et seq a. Manufactured, fictitious, physically altered license b. Manufacturer is subject to felony c. Holder of fake ID i. 625 ILCS 5/6-206(a)(14) ii. Minimum 12 month suspension (92 IAC a) 5)) iii. Reduced or eliminated with cooperation (92 IAC d)) d. RDP available i. Investigative Evaluation ii. Hardship 2. Violation of 625 ILCS 5/6-206(a)(10) a. Use, display or POSSESS b. No usage, driving or drinking required (Freed v. Ryan, 301 Ill. App. 3d 952, 704 N.E.2d 746, 235 Ill. Dec. 173 (1 st Dist. 1998)) c. No conviction or even ticket is required i. Successful resolution of drinking ticket does not resolve problem ii. Baked in the cake d. 12 months (92 IAC a) 3)) e. Rescind or Modify i. Formal hearing only (92 IAC ) ii. Must show there is no discernible connection to alcohol 1. Policy memo 2. Un-promulgated rule? iii. Modify only in rare circumstances (92 IAC ) f. RDP available i. Investigate Evaluation ii. Hardship iv. Zero tolerance (625 ILCS 5/ ) 1. Any BAC level is a violation Page 16 of 20

17 a. 3 month suspension if blow over zero b. 6 months if no blow c. Progressive sanctions for subsequent offenses 2. Entitled to challenge ZT suspension on strictly defined grounds a. Formal hearing with SOS b. Usually futile (warning administered after test, fine by SOS) 3. RDP available (92 Ill. Adm. Code ) a. First 30 days of suspension, no driving relief b. Obtain and review study guide c. Take and pass test d. Attend informal hearing i. Investigative Evaluation where 1. BAC is between.04 and Other evidence (example, prior alcohol-type offense, driving or nondriving) suggests drinking and driving potential ii. Uniform Evaluation where 1. BAC is above.08 or 2. Prior DUI disposition iii. Complete any recommendations that arise from the evaluation iv. Prove hardship v. Wait for decision v. Illegal transportation of alcohol (625 ILCS 5/11-502) 1. Suspension of youthful offender for first conviction (625 ILCS 5/6-206(a)(33)) 2. Suspension is for 12 months (92 IAC a)) 3. A second conviction requires a one year revocation (625 ILCS 5/6-205(a)(13)) 4. Supervision is not a conviction d. False information in a license application (625 ILCS 5/6-206(a)(9)) i. Multiple licenses with altered dates of birth, middle initials etc ii. Can arise MANY years after the fact iii. Revocation for 12 months if already revoked for DUI (92 IAC a) 2), the typical situation 1. Hearing required with SOS since revoked 2. Innocence is NOT a defense! Bruce v. White, 344 Ill. App. 3d 795, 279 Ill. Dec. 907, 801 N.E.2d 581 (4 th Dist. 2003), appeal denied, 208 Ill. 2d 534, 284 Ill. Dec. 338, 809 N.E.2d 1284 (2004). 3. May contest the revocation under 92 IAC d) a. A discretionary revocation may be altered to a 12- month suspension but must remain at 12 months Page 17 of 20

18 b. At best, a completely innocent person must serve a 12-month suspension c. May create extreme hardship for out-of-state applicants or retirees who cannot obtain an RDP and must wait out a 12 month suspension before being reinstated, even though they are totally innocent e. Medical cancellations f. Purely accidental conduct that leads to death (625 ILCS 5/6-205(a)(16)) i. One year mandatory revocation (625 ILCS 5/6-208(a)) ii. Any conviction for a moving offense involving fatality iii. Right to request early termination or modification iv. Standards for granting that relief are unspecified g. Alcohol-related personal injury or death accidents with no DUI charge i. 625 ILCS 5/6-206(a)(31) ii. Refusal or BAC over.08 iii. No charge iv. Treated as an SSS for purpose of length of suspension v. All hearings to contest the suspension or seek an RDP are held through SOS h. Driver causing injury accident requiring medical attention i. 625 ILCS 5/6-206(a)(4) ii. 92 IAC Must be convicted of a moving violation unless the offense involves an immediate action violation, for instance, leaving the scene 2. Only applies if there is a Type A injury to someone other than the driver and required to be taken away by ambulance due to severity of injuries (Odom v. White, 408 Ill. App. 3d 1113, 350 Ill. Dec. 565, 948 N.E.2d 1072 (5 th Dist. 2011) 3. Type of license action taken depends upon points accumulated 4. No suspension may be imposed more than 12 months after the accident or 6 months after a conviction if a ticket is issued, whichever is later i. Administrative Revocation (92 IAC ) i. SOS receives sufficient evidence driver is guilty of enumerated offenses that are currently awaiting court disposition and resulted in great bodily harm or death ii. Generally employed when the court case is moving too slowly and SOS wants driver off the road iii. Right to contest revocation with SOS j. Non-residents (92 IAC k)) i. All persons revoked for DUI must have a hearing 1. Age of offense does not matter Page 18 of 20

19 2. Pulling the rug out from under an oft-renewed foreign license does not matter 3. Fact there is no desire to have an Illinois license or ever drive in Illinois again does not matter ii. Truncated hearing for the transient DUI offender who: 1. Lives more than 30 miles from Illinois border, as the crow flies 2. At the time of the DUI arrest, the offender was not then, nor is now, a resident of Illinois or a holder of an Illinois driver s license 3. The offender does not seek to reside in, or be licensed by, Illinois 4. The state of the offender s residence or licensure at the time of the Illinois DUI has cleared the offender for driving privileges but for the Illinois revocation 5. The offender has paid all necessary fees to Illinois 6. The offender agrees to undergo a full hearing if attempting to apply for an Illinois driver s license within the subsequent three years iii. Holder of a driver s license issued by a Compact state member 1. In theory, a non-resident who received a license from a member of the Interstate Compact is permitted to forgo an Illinois driver s license hearing (92 IAC ) 2. That never happens iv. Complying with evaluation, treatment and DRE 1. All non-residents may obtain evaluation, treatment and DRE from a facility licensed by their home state ((92 IAC a) 2)) a. Those who live more than 30 miles from the Illinois border may have a hearing through the mail, by submitting an out-of-state packet (92 IAC a) 1)) b. Those within 30 miles of the Illinois border must have an in-person hearing (92 IAC a) 2)) c. Out-of-state forms inhearingspub.html) 2. This process, from the out-of-state evaluators and through to the petitioner s affidavit, is more than meets the eye 3. Decisions can take as long as six months Page 19 of 20

20 k. Clients who re-locate to foreign state mid-process i. Must be eligible for full reinstatement 1. Illinois has no jurisdiction to order foreign state to issue a restricted license to allow a resident of the foreign state to drive in the foreign state 2. Exception: a. Illinois may, if the applicant is licensed in the foreign state, issue an RDP to drive in Illinois (92 IAC (j)) b. Theory is that only if the foreign resident is able to reach the Illinois border will a permit in Illinois serve any purpose ii. Dependent letters of support and abstinence must cover period in Illinois and in new state iii. If more than 30 miles from border, has option of in-person hearing or packet iv. Not subject to BAIID Page 20 of 20