Formal Hearings

Get Your Drivers License Back

Revocation, Reinstatement, and Recovery
– David Winer

The revocation of driving privileges is one of the most serious long term consequences of a DUI conviction while penalties for a DUI based Driving While License Revoked ticket are extremely harsh. Defendant’s convicted for Driving Under the Influence (DUI) face increasingly complex administrative hearings before the Secretary of State (SOS) to obtain a Restricted Driving Permit or reinstatement. Although the SOS has implemented difficult regulations to obtain a permit or reinstatement, petitioner’s who prove they have are no longer a risk to public safety can, with perseverance and hard work, succeed in obtaining driving privileges. This article will primarily deal with the Formal Hearing procedure in obtaining a Restricted Driving Permit (RDP) or reinstatement following a DUI conviction.

(A) DIFFERENCE BETWEEN A SUSPENSION AND REVOCATION

Suspension
A suspension is a temporary withdrawal of a petitioner’s driving privileges for a determined period of time. The Secretary of State determines the length of the suspension based on the type of offense, prior driving history, age of driver and other factors. If the driver does not obtain any convictions for a moving violation during the period of the suspension then it will end on the termination date. A reinstatement fee must be paid, and the amount is determined by the type of suspension.

Revocation
Unlike a suspension, a revocation is indefinite and unless the petitioner requests a SOS hearing the petitioner will never be valid to drive again. A revocation does not automatically terminate even though there is an eligibility date set forth on the Notice of Revocation. However a Petitioner must wait a certain period of time before he can apply for a RDP or full reinstatement. Following a hearing only the SOS can grant driving privileges.

(B) DATES FOR ELIGIBILITY

Restricted Driving Permit (RDP) Eligibility Dates
A petitioner is eligible to petition for a RDP upon entry of an order of revocation pursuant to the below guidelines. Similar to a Judicial Driving Permit the petitioner can request relief for employment, medical care treatment/recovery meetings, community service and/or education. However, RDP eligibility may be delayed by a summary suspension arising out of the same incident. For a first offender who fails the breathalyzer they receive a three month suspension or a six month suspension for a refusal. A second offender who fails the breathalyzer test receives a twelve month suspension while one who refused receives a three-year suspension. There is no RDP eligibility during the entire period of any Summary Suspensions. Absent an existing Summary Suspension the eligibility dates for an RDP following a DUI conviction are as follows:

-First conviction: Immediately after revocation entered
-Second conviction: One year
-Third conviction: One year
-Fourth or more: Lifetime revocation if last arrest was after January 1, 1999.

Full Reinstatement Eligibility Dates
A person is eligible for full reinstatement pursuant to the below dates, but will remain revoked until a SOS hearing is held. The eligibility date is located on the Notice of Revocation that the SOS sends the petitioner. However, in practice, although eligible for full reinstatement the SOS will require a RDP for a year prior to granting reinstatement. These dates will be adversely effected by a subsequent conviction for Driving While License Revoked.

-First conviction: One year
-Second conviction: Five years if second conviction occurred within 20 years.
-Third conviction: Ten years regardless of date of offenses
-Fourth or more: Lifetime if last conviction occurred after January 1, 1999.

For a Defendant who is under 21 years old the dates are:
First conviction: Two years
Second Conviction: Five years or until his 21st birthday whichever is longer
Third offense: Ten years
Fourth conviction: Lifetime revocation

Out of State Convictions for DUI.

Convictions for an out of state DUI arrest are mandatory. The arresting state will report the DUI disposition to Illinois and since they do not have supervision a conviction is entered revoking the Illinois license. For a first offender an informal hearing may be held at a local SOS Office, but the RDP and reinstatement eligibility dates are still applicable.

(C) FORMAL HEARINGS

1) Scheduling a Hearing
A formal hearing is required if the petitioner has two DUI arrests and/or a summary suspension on his abstract and is conducted at the Secretary of State Office in Chicago or Joliet. A petition with a $50.00 check is mailed to their office and you are notified by mail of the hearing date. The hearing date is usually scheduled between four to seven weeks after the petition was sent in. If you are unsure what type of hearing is required simply call the SOS Administrative Hearing office to inquire.

2) Required Documentation
Prior to the hearing it is critical to obtain the proper alcohol/drug treatment documentation from the treatment provider. Treatment documentation for Level Two Significant and Level Three petitioners must include the following information:

-Uniform Evaluation (with a chronological alcohol/drug use history)
-Update Evaluation (If the Uniform Evaluation is older than six months)
-Risk Education/Remedial Education Certificate
-Treatment Verification Form
-Individualized Treatment Plan
-Discharge Summary
-Aftercare/Continuing Care Plan (not required for Level Two Moderate-Risk petitioners)
-Medical Report if on medication or has existing medical or mental health problems.
-Continuing Care Status Report (Continuing care need not be completed prior to the hearing date)

For Level Three Dependent: In addition to the above the following must be obtained:
-Three letters of abstinence for a minimum of 12 months if seeking reinstatement and six months for a RDP.
-Three letters from fellow participants of a support program (i.e. AA or NA) or a non-traditional support group such as church members who regularly see him in attendance. The SOS can provide forms for these.

3) ALCOHOL EVALUATION AT THE FORMAL HEARINGS

Alcohol Evaluation Classification Standards.
A petitioner’s classification is primarily dependant on the BAC reading, prior record and information reported to the evaluator. All evaluations must be completed by an agency licensed by the Office of Alcoholism and Substance Abuse. The below are the minimum requirements for classification:

Level I Minimal Risk is permitted for a petitioner with a breathalyzer under .15% and no prior DUI charges or summary suspensions on his abstract.

Level Two Moderate, requires one prior DUI or summary suspension and/or a breathalyzer between.15-.19%.

Level Two Significant requires one prior conviction or supervision for DUI, one prior reckless driving conviction reduced from DUI, or one prior summary suspension and/or breathalyzer of .20 or higher and/or the existence of certain substance abuse symptoms.
Level Three High Risk is mandated when within a 10-year period of the most recent third arrest, any combination of two prior convictions/suspension for DUI or prior statutory suspensions or prior reckless driving convictions reduced from DUI and/or three or more symptoms of dependency.

The Uniform Report and Update Evaluation

The Uniform Report and/or the Update Evaluation are the most important documents for a formal hearing. The Uniform Evaluation must be completed within six months of the hearing date and if it is older than six months, the same agency program that performed the original should provide an Update Evaluation. A different agency may perform the evaluation if the original agency has ceased operating and a new agency assumed its files . The petitioner does have the right to obtain a completely new evaluation from another OASA licensed agency. However, if a new agency is completing the evaluation it should prepare a full Uniform Evaluation, Treatment Needs Assessment and chronological drinking history. If no further treatment is required a Treatment Waiver should also be prepared. While treatment in limited circumstances may be waived, Risk Education cannot be waived and the certificate must be presented to the SOS.

There are several areas in an alcohol evaluation and treatment documents that cause problems. Improper classification is a major reason why petitions are denied as it is incorrectly assumed that a petitioner’s classifications is solely dictated by the number of DUI dispositions or their BAC. While these factors mandate the minimum classification, the petitioners reporting of his past or current abuse to the evaluator is usually the primary factor. The other most common deficiencies in the evaluation or treatment documents are due to the failure to:

1) Include other alcohol/drug offenses such as boating under the influence, open transportation or minor consumption of alcohol, etc
2) Provide a correlation between amount the petitioner drank and their BAC results from the DUI arrests.
3) Denial of impairment as when a petitioner is convicted it is presumed by the SOS that he was impaired.
4) Provide an acceptable alcohol/drug use history twelve months prior to his arrest.
5) Include sufficient substance abuse symptoms supporting the classification.
6) Include a credible chronological history of past alcohol or illegal drug use.
7) Properly address the issues in a prior SOS hearing Denial Order.

(D) FORMAL HEARING PROCEDURE
Upon arrival at the SOS office there are several documents at the front desk that must be filled out by the petitioner. Upon completion you wait until your case is called and then proceed inside the hearing room. The hearing is conducted by an Administrative Judge who is an employee of the Secretary of State and a prosecutor is also present. The hearing officer will administer the oath, rule on motions, subpoena witnesses or documents upon motion of either party, rule on the admissibility of evidence and can also pose questions to the petitioner. A record of the proceedings is made by a tape recorder in case an appeal is filed in the civil Chancery Court.

The Petitioner has the burden of proof by clear and convincing evidence. Prior to testifying the petitioner will submit the previously mentioned treatment documents, evaluation(s) and any other character, recovery or employment letters. After admission of the documents the attorney will direct examine his client. It is very important that the testimony be consistent with the properly prepared evaluations and treatment documents. Additional witnesses may also be called to testify about the petitioner’s character, abstinence or non-problematic drinking habits. Following direct examination the SOS prosecutor may cross-examine the petitioner and his witnesses. Anytime during the hearing the hearing officer can interject and question the petitioner.

Prior to petitioner’s reinstatement date he must additionally show an “undue hardship” due to the loss of his license. A petitioner who is eligible for reinstatement does not need to establish undue hardship to obtain an RDP. To show an undue hardship the petitioner must present by clear and convincing evidence a lack of reasonable alternatives to driving, such as public transportation, rides from others, walking etc. Mere inconvenience does not constitute an undue hardship. An undue hardship can be proven by showing that the lack of transportation poses a serious threat to the petitioner’s employment or that it will significantly effect his income. It is good practice to prove an undue hardship by submitting a letter from the petitioner’s employer noting possible termination of employment or a serious loss of income due to loss of advancement, promotion, reduction in hours and so forth.

A closing statement is permitted, but rarely utilized. At the conclusion the hearing the Hearing Officer will submit his findings and a recommendation to the Department of Administrative Hearings in Springfield for final review. Generally, within four to eight weeks a written detailed Order will be prepared and sent to petitioner and counsel. If the petitioner is denied then he must wait four months from the original hearing date to have another hearing. For an Informal Hearing the waiting period is thirty days.

E) ISSUANCE ON A RESTRICTED DRIVING PERMIT
If the SOS grants a Restricted Driving Permit, it will mail the petitioner a list of requirements to fulfill. These must be completed within a specified period of time or the permit will be canceled. Even if a petitioner is eligible for reinstatement and demonstrated that he is not a risk to public safety, the SOS will usually first grant an RDP prior to full reinstatement. Hence, when petitioning for a hearing it is wise to request the option of both an RDP and full reinstatement rather than reinstatement only.

Upon the granting of an RDP to a Level Two Significant or Level Three petitioner the SOS will likely require him to install a Breath Alcohol Ignition Interlock Device (“BAIID”) in his vehicle. A BAIID is required for persons who have either two convictions for DUI (there is no time limit) or either two summary suspensions or one conviction for DUI with a Summary Suspension from a separate DUI arrest occurring within a ten year period. The petitioners must pay for the installation and use of the BAIID.

The RDP will be limited to the times dates, hours, and radius, for employment, medical or education purposes for up to twelve months. The person’s underlying driving privileges remain revoked except for the privileges granted on the permit. Any traffic, BAIID or RDP violations may result in cancellation of the permit. It is critical to obey ALL the traffic laws and specifications of the RDP.

F) REINSTATEMENT
If the petitioner is eligible for reinstatement, after he has driven without incident for nine of the twelve months on the Restricted Driving Permit, he may apply for full reinstatement prior to the termination of his permit. The reinstatement hearing requires that another Formal Hearing petition be sent to the SOS to schedule a hearing. The treatment documents are not required to be resubmitted, but a new Update Evaluation and Continuing Care Status Report must be submitted. For Level Three petitioner they must again submit three letters of Abstinence and Support Group confirmation letters. The testimony is generally the same as the prior hearing with additional questions regarding the petitioner’s performance on the RDP. As before, an Order is prepared and requirements mailed to the petitioner.

*The Administrative Rules for Secretary of State Hearings are found at 92 Ill. Admin. Code Ch. II Sec. 1001, et seq.*

 

Winer and Winer helps people get their Illinois driver’s license reinstated throughout Lake County Illinois, including residents of the following cities and the surrounding areas: