New Legislation for Secretary of State Hearings and DUI Offenses, Effective January 1, 2016  by David J. Winer

On January 1, 2016, several new laws go into effect relating to Secretary of State Hearings and Driving Under the Influence offenses. As with any newly penned legislation, many of them will be subject to varying interpretations, and in time, will become settled law. For practitioners in this area, these changes will have a significant impact on many of our clients. As anticipated, many of these laws increase the use of Breath Ignition Interlock Devices commonly called a BAIID. The staff of the Secretary of State is currently preparing new administrative rules regarding the increased issuance of BAIID’s that are monitored by one of nine companies contracted by the State. The new devices already include a camera to photograph who blows into them and keep a detailed log of all the breath tests taken.

The primary laws relating to Secretary of State and DUI’s are detailed below and the Public Act number is provided for those who want to read the full text of the upcoming law.

1). Lifetime Ban Removed for Fourth Time DUI Offenders (PA 99-290, HB 1446)
Previously, an offender with four DUI convictions, (in any state) with one being after 1999 was revoked for life and could not obtain any type of driving privileges. Under the new law, Illinois residents may now apply for a RDP five (5) years after the revocation date or upon release from imprisonment, whichever is later. They must prove a minimum three years of abstinence from alcohol and illegal drugs and successful completion of rehabilitative treatment. The RDP requires that they may only operate a vehicle equipped with a BAIID. There is no provision allowing full reinstatement after a designated period of time. Essentially a driver must use the BAIID forever as a full license will never be issued. To petition for this type of RDP a Formal Hearing is required as discussed below

At this stage, the RDP only allows limited driving for employment, medical care, education, child’s day care, court ordered public service and support group attendance. It does not permit any driving beyond those designated areas. Also, there is no provision allowing the driving of a work vehicle without a BAIID. For example, a standard RDP or MDDP permit, may allow a driver without a BAIID, during work hours, to operate a designated work vehicle such as a delivery truck, limo, etc.

A person is not eligible for this type of RDP if convicted of more than one violation of DUI drugs, combination of alcohol & drugs or an intoxicating compound. The reasoning is that since the BAIID only detects alcohol, the legislation left out drug related DUI’s perhaps until new technology is available to immediately test for those substances. For those offenders the lifetime ban remains in effect.

If a person is convicted of a DUI while on this RDP, they will be permanently barred from any future relief. If they are caught driving a vehicle without the BAIID it is a Class 4 felony with a 30-day minimum sentence and for a second offense it is a Class 2 felony and not eligible for probation or Conditional Discharge and must serve imprisonment.

Out of State Residents who are lifetime revoked can now seek clearance of the Illinois revocation hold ten years from the date of revocation and must also show three years of abstinence and completion of alcohol treatment. They are required to petition the Secretary of State through an Out of State Packet or in person Formal Hearing. However, if they subsequently return to reside in Illinois, their license will immediately be revoked and are then subject to the above stated rules for Illinois residents.

2). Removal of Ten Year Requirement for Mandatory BAIID (PA 99-467, SB-627)
Under the old law a BAIID was only required if an offender had 2 or more DUI related convictions or suspensions within a 10 year period. That ten-year period has been removed and a BAIID is required, if at any time the license was revoked or suspended two or more times due to a combination of any type of DUI or Summary Suspension. In short, regardless of when these offenses happened or the intervening years it will require the use of a BAIID for a minimum of five years.

3). One year Hard Time Removed and Five Minimum Use of BAIID Required (PA 99-467)
Previously, a person convicted of two or three DUI’s had to wait for one-year period of hard time to apply for an RDP. This one-year period has been removed and they can now petition for an RDP immediately upon revocation. The BAIID will be required for a minimum period of five years following a second offense and ten years for a third offense of any type of DUI. They cannot apply for full reinstatement until they have been issued an RDP, and used it for the specified period without suspension, cancellation, revocation or a violation of a BAIID regulations and after their eligibility date has passed.

4). May Apply for a Restricted Driving Permit following a Three year Summary Suspension (PA-296, HB-3533)
Previously, an offender following a DUI arrest, who refused to take a breath or blood test and had prior Summary Suspension or DUI disposition within five years, was issued a three-year suspension with no relief available. Even with a not guilty or dismissal on the DUI, if the Summary Suspension was upheld, there was no permit allowed for three years. Now, the driver can petition through a Formal hearing, for an RDP with a BAIID. Defense attorneys must be cognizant that if the driver is convicted and subsequently revoked for the underlying DUI, the standard RDP rules above will apply. A petition for an RDP during a three-year Summary Suspension will likely occur if there was a finding of not guilty or a dismissal of the DUI. A Formal Hearing will be scheduled only after Summary Suspension is in effect.

5). Removal of Thirty Day Hard Time with a Summary Suspension (PA 99-467, SB-0627)
Previously, for a “first offender” Summary Suspension there was a thirty-day period of hard time before they could install a BAIID pursuant to an MDDP permit that allows unlimited and unrestricted driving. That thirty-day hard time has now been eliminated and a MDDP with a BAIID can be obtained from the start date of the Summary Suspension, which is 46 days following the arrest. The start date will vary for a blood draw. If eligible, an MDDP permit is granted through an application sent in the mail to the Secretary of State and does not require a hearing.

6) Warnings to Motorist (PA 99-467, SB-0627)
A person requested to submit to a BAC test following an arrest for DUI test shall acknowledge in writing receipt of the Warning to Motorist. If he refuses to acknowledge receipt the police officer shall make a written notification that the person refused to sign the waning. A refusal to sign shall not be evidence that he was not read the warning

7) Supervision allowed in certain aggravated Speeding offenses (PA 99-12)
Legislation now permits first time offenders, charged with aggravated speeding (more than 26 mph over) to be eligible for Court Supervision. The Illinois State Bar Association E-Clips stated that the new law (1) Creates the offense of aggravated special-speed limit for going 26 or more mph but less than 35 (Class B misdemeanor) and for going more than 35 mph in a school zone or highway-construction zone (Class A misdemeanor). (2) Prohibits supervision for aggravated speed in a highway-construction zone. (It doesn’t change the blanket prohibition against supervision for speeding in a school zone.) (3) Allows supervision to be given for 26 or more mph over the posted speed limit if the driver has never been convicted of this offense or been given supervision for it. (4) Prohibits supervision from being given if driving more than 26 or more mph over the posted speed limit if it was done in an urban district.

Eligibility Dates for DUI Based Permits and Reinstatement

For a Restricted Driving Permit, following DUI conviction(s) a petitioner may petition for a hearing pursuant to the below guidelines. A permit is only allowed for employment, medical care, support group, community service and/or education. Absent an existing Summary Suspension or other type of revocation or administrative hold, the eligibility dates for an RDP following a DUI conviction(s) are as follows:

– First, second or third conviction: Immediately after revocation entered
– Fourth or more: Five years after the revocation date or upon release from imprisonment, whichever is later.

For Full Reinstatement a person is eligible pursuant to the below dates. The eligibility date is located on the Notice of Revocation sent by the SOS or on their driving abstract. However, in practice, although eligible for full reinstatement the SOS will likely first grant an RDP prior to granting full reinstatement. These dates will be extended by a subsequent conviction for Driving While License Revoked or other moving violations.

– 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: Never, but a permanent RDP can now be granted. For Out of State Petitioners, a ten-year period is required

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: Never, but a permanent RDP can now be granted. For Out of State Petitioners there is a ten-year period.

FORMAL HEARINGS, A Brief Overview

Formal hearings are conducted at the Secretary of State Office in Chicago or Joliet. A petition with $50.00 is mailed to their office and notification is then sent by mail with the hearing date. They are usually scheduled six to eight weeks after the petition was sent in.

The hearing is conducted by an Administrative Hearing Officer and also present is a Secretary of State prosecutor. The hearing officer will administer the oath, rule on the admissibility of documents/evidence and can pose questions to the petitioner. The proceedings are recorded in case an appeal is filed in the civil Chancery Court.

Prior to testifying the petitioner will submit alcohol evaluation(s), treatment documents, and other letters of character, support group or employment etc. After admission of their documents the petitioner’s attorney will conduct a direct examination of their client. Witnesses may also be called to testify about their character, lifestyle changes, abstinence or non-problematic drinking, etc. Following direct examination, the SOS prosecutor will conduct cross-examine and anytime during the hearing the Hearing Officer can interject and question the petitioner.

Prior to petitioner’s reinstatement eligibility date he must prove an “Undue Hardship” due to the loss of his license. They 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 shown that the lack of transportation poses a serious threat to their employment, duties or significantly affect income. It is good practice to submit a letter from the employer noting possible termination, serious loss of income, promotion, reduction in hours, etc.

At the conclusion the hearing the Hearing Officer will submit his written findings and recommendations to the Department of Administrative Hearings in Springfield for final review. Generally, within eight to twelve weeks a written Order will be sent from Springfield to the petitioner and his counsel.

Issuance of an Restricted Driving Permit
If an RDP is granted, the SOS will mail a list of requirements to fulfill such as a driving test, obtaining SR-22 insurance, payment of a permit fee. The RDP will be limited to certain dates, hours and mile radius. Any moving or BAIID violations may result in cancellation of the permit. It is critical to obey ALL the traffic laws, BAIID regulations and the restrictions of the RDP.

Full Reinstatement
If the petitioner is past their eligibility date for reinstatement and fulfilled the RDP-BAIID requirements, they may apply for a full license. The reinstatement hearing requires another petition to be sent to the SOS to schedule a new formal hearing. A current Update Evaluation and other required documents must be tendered. The testimony is generally the same as the prior hearing with additional questions regarding their performance on the RDP and BAIID. As before, an Order is prepared mailed from Springfield with the results.

David J. Winer, a partner at the Law Offices of Winer & Winer, and concentrates in Secretary of State Hearings, DUI/Traffic and Criminal Law with offices in Waukegan and Skokie. Further information on Secretary of State hearings can be found at www Driverslicenseback.com

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