Formal Hearings

Formal Hearings before the Secretary of State for Driving Permits and Reinstatement

          ~David J. Winer

It is mandatory that drivers convicted of Driving Under the Influence (DUI) attend an administrative hearing before the Secretary of State (SOS) to obtain a driving Permit or reinstatement. Although the SOS has implemented complex rules to restore driving privileges, with perseverance they can succeed. This article reviews the Formal Hearing procedure in obtaining a Permit or reinstatement following a DUI conviction.

(A). DIFFERENCE BETWEEN A SUSPENSION AND REVOCATION

Suspension
A suspension is a temporary withdrawal of driving privileges for a determined period of time and has a beginning and ending date. 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 suspension it will end on the termination date. A reinstatement fee must be paid, and the amount is determined by the type of suspension.

Revocation
Typically entered for convictions of DUI, reckless homicide and several other serious traffic offenses, a revocation is indefinite unlike a suspension, Unless the petitioner requests an SOS hearing they 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. Only after a hearing will the SOS grant any driving privileges.

(B). DATES FOR ELIGIBILITY

PERMIT Eligibility Dates
A petitioner is eligible to petition for a permit immediately upon an order of revocation pursuant to the below guidelines. Below are the eligibility dates to apply for a Permit following a DUI conviction:

  • First second or third DUI convictions:  Immediately after revocation entered
  • Fourth or more:  Five years after the revocation date and must always drive with a BAIID as full reinstatement is not allowed. (Last conviction must be 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 hearing is held. The eligibility date is located on the Notice of Revocation that the SOS sends the petitioner. In practice, although eligible for full reinstatement the SOS requires an RDP prior to granting reinstatement. “Court Supervision” for a DUI is not considered a conviction in Illinois. These dates will be adversely affected by a subsequent conviction for Driving While License Revoked or other tickets.

  • First DUI conviction:  One year
  • Second DUI conviction:  Five years if second conviction occurred within 20 years.
  • Third DUI conviction:  Ten years regardless of date of offenses
  • Four or more:  Lifetime if last conviction occurred after 01/01/1999 and is eligible for a lifetime permit.
  • Reckless Homicide or Aggravated DUI with Serious personal Injury:  Two years from revocation date or release from prison whichever is later

For Drivers under 21 years old:

  • First DUI conviction:  Two years
  • Second DUI conviction:  Five years or until his 21st birthday, whichever is longer
  • Third DUI Conviction:  Ten years
  • Fourth conviction:  Lifetime revocation

Out of State Convictions for DUI.

A Revocation for an out of state DUI conviction is mandatory. The arresting state reports the DUI disposition to Illinois and since they do not have “Supervision” a conviction and revocation is entered. For a first offender an Informal Hearing may be held at a local SOS Office, but the Permit and reinstatement eligibility dates are still applicable. There may also be an additional suspension or revocation prior to the disposition due to the Implied Consent holding in another State.

Hardship

For a hearing prior to the Reinstatement Eligibility, an “Undue Hardship” due to the loss of the license must be shown. To prove an undue hardship the petitioner must present evidence of 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 threat to the petitioner’s employment, job duties, or significantly affects income. It is good practice to prove an undue hardship by submitting a letter from an employer noting possible termination of employment or a serious loss of income due to loss of advancement, promotion, reduction in hours and so forth.

(C). FORMAL HEARINGS

1). Scheduling a Hearing

A Formal Hearing conducted at the Secretary of State Administrative Office in Chicago or Joliet and is required if the petitioner has two DUI arrests, reduced reckless driving and/or a summary suspension on his abstract. A completed Secretary of State petition with a $50.00 check is sent to their office and you are notified of the hearing date. The hearing date is usually scheduled between six to eight weeks after the petition is delivered while the results after the hearing are delivered out roughly two to three months after the Formal Hearing.

2). Hearing Procedure

Upon arrival at the SOS office there are several documents at the front desk that must be filled out. Upon completion you wait until your case is called and proceed to the hearing room. The hearing is conducted by an Administrative Judge who is an employee of the Secretary of State, and an SOS prosecutor is also present. The hearing officer will administer the oath, rule on the admissibility of evidence and can 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.

Prior to testifying the petitioner will submit the above treatment documents, evaluation and any other character, support group or employment letters. After admission of the documents their attorney will pose questions to their client. It is especially important that the testimony be consistent with the properly prepared evaluations, treatment documents and letters. 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 can cross-examine the petitioner and anytime during the hearing the hearing officer can question the petitioner.

At the conclusion of the hearing the Hearing Officer submits their findings and a recommendation to the Department of Administrative Hearings in Springfield for a final review. Generally, within two to three months a written Order is prepared and sent to the petitioner and their attorney.

If the SOS grants a Permit, they will mail a list of requirements to fulfill within a specified period of time. Even if eligible for reinstatement, the SOS will usually first grant a permit prior to full reinstatement. Hence, when petitioning for a hearing it is wise to request the option of both a Permit and full reinstatement rather than reinstatement only unless there are extenuating circumstances. Upon the granting of a Permit for a DUI revocation a Breath Alcohol Ignition Interlock Device (“BAIID”) is required for persons who have either two DUI’s or summary suspensions. If the petitioner is denied, then he must wait three months from the original hearing date to have another hearing. For an Informal Hearing the waiting period is thirty days.

3). TWO TYPES OF DRIVING PERMITS

PROBATIONARY PERMIT

A “Probationary” allows driving 12 hours a day, six days a week within a 200-mile radius for any purpose and is issued to those 1) Whose eligibility date has passed and are eligible for full reinstatement and the permit if for one year, or 2) A BAIID Multiple Offender (BMO) with 2 or 3 convictions regardless of their eligibility date and must keep the BAIID installed for 5-years before applying for full reinstatement. A 2-year permit is initially issued that must be renewed every two years at an Informal hearing unless there was a BAIID violation not accepted by the BAIID Department whereas a Formal Hearing must be conducted. To avoid a lapse in the 2-year BMO Permit, a renewal hearing is permitted four months before its expiration date. However, a lapse will not be counted if the petitioner keeps the BAIID installed during the lapsed period.

RESTRICTED PERMITS

A “Restricted” Driving Permit is issued for one year and is limited to times dates, hours and requires proof a hardship and are issued to non-BMO drivers who are not yet eligible for full reinstatement. They are restricted for only employment, medical care for the petitioner or a family member, court ordered public service, education, day care or a support program. The Secretary of State also allows emergency repairs, routine vehicle care, including oil changes, tire rotation, alignment and emission testing, or service.
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At the time of the hearing if the petitioner is not eligible for full reinstatement and is granted an RDP and while on the permit becomes eligible for reinstatement they can petition for full reinstatement if they drove on the RDP for nine of the twelve months.

A lifetime revocation occurs if convicted of four or more DUIs in any state with the last arrest occurring after January 1, 1999. Illinois residents are permitted to apply for a lifetime permit five years from the date of the last revocation, or release from prison, whichever is later. They are never eligible for reinstatement and must always drive with a BAIID on a standard Restricted Driving Permit. However, if the petitioner moves out of state, they must then wait to apply for clearance 10 years from the last revocation date in any state.

It must be noted that with either type of permit any moving traffic tickets or BAIID violations may result in cancellation of the permit. It is critical to obey ALL the traffic laws and specifications of the Permit.

4). REINSTATEMENT

For a non-BMO permit, if the petitioner eligibility date has passed and they have driven without incident for nine of the twelve months on the permit, they may apply for full reinstatement three months prior to the expiration of the permit. For a 5-year BMO permit they must drive on the permit for the entire five years before applying for full reinstatement.

The reinstatement hearing requires another Formal Hearing with a petition sent to the Secretary of State. While treatment documents are not required, a new Update Evaluation must be submitted. For Level Three Dependent petitioners the letters of Abstinence and Support Group letters must be additionally submitted. The testimony at a reinstatement hearing is less involved than the prior hearing with additional questions regarding performance on the permit. As before, in two to three months an Order is prepared and mailed to the petitioner.

(D). REQUIRED DOCUMENTATION

Prior to the Formal Hearing it is critical to obtain the proper alcohol/drug documentation which 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/Remedial Education Certificate
  • Treatment Verification Form
  • Individualized Treatment Plan
  • Discharge Summary
  • Aftercare/Continuing Care Plan (not required for Level Two Moderate-Risk petitioners)
  • Continuing Care Status Report (Continuing care need not be completed prior to the hearing date)
  • Other documents may sometime include a Medical Report, Drug Usage forms, Character letters, Employment letters, etc.

For Level Three Dependent Classification:  In addition to the above the following must also be obtained:

  • Three letters showing abstinence for a minimum of 12 months for reinstatement and six months for a Permit.
  • Three letters from participants of a support program (i.e. AA or NA) or a Non-Traditional Support Group such as church members, family & close friends who regularly see them. The SOS has forms for these.

1). ALCOHOL EVALUATION AT THE FORMAL HEARINGS

Alcohol Evaluation Classification Standards.

A petitioner’s classification is primarily dependent on the BAC reading, prior record, and information from 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 alcohol evaluation classification:

Level I Minimal Risk – First offenders with a breathalyzer under .15% and no prior DUI’ or summary suspensions.

Level Two Moderate – First offender with a breathalyzer between.15-.19%. and no prior DUI’ or summary suspensions

Level Two Significant – Requires one prior DUI, reckless driving conviction reduced from DUI, prior summary suspension, breathalyzer of .20 or higher or the existence of certain substance abuse symptoms.

Level Three High Risk – Os 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 reckless driving convictions reduced from DUI and/or four or more symptoms of dependency.

2). Uniform Report and Update Evaluation

The Uniform Report and/ Update Evaluation is the most important document 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 that performed the original can provide an Update Evaluation. A different agency may perform the evaluation if the original agency has ceased operating and a new agency takes over its files. However, a petitioner can obtain a new evaluation from another agency that must also include a Treatment Needs Assessment and if no further treatment is recommended a Treatment Waiver. While treatment in certain circumstances may be waived, ten hours of Risk/Remedial Education cannot be waived, and a certificate must be presented to the Secretary of State.

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 their 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 the 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. Include sufficient substance abuse symptoms supporting the classification.
  5. Include a credible chronological history of past and current alcohol or drug use.
  6. Properly address the issues in a prior SOS hearing Denial Order.