THE EFFECT OF AN OUT-OF-STATE DUI CONVICTION ON AN ILLINOIS LICENSED DRIVER AND HOW TO DEAL WITH IT
By Donald J. Ramsell
A new client comes into your office. He is an Illinois resident who was arrested for DUI while vacationing in your state. In addition to questions about what is likely to happen as a result of the prosecution in your state, he also asks whether his Illinois driver's license will be affected. This purpose of this article is to provide you with some ready answers to the questions you likely will field. For starters, a conviction for DUI in any state will result in the automatic revocation of an Illinois driver's license.1 In addition, the refusal to submit to chemical testing, (breath, blood and/or urine) after an arrest for DUI will result in the suspension of an Illinois driver's license. 2These items will be discussed separately.
A) Effective Date and Duration
The Illinois Secretary of State will automatically revoke the driver's license of a resident upon receipt of a report of any conviction for DUI or a similar offense where the cause of action is the same or substantially similar to the offense of DUI as defined in the Illinois Motor Vehicle Code. 3Some State's have statutory schemes that provide for different impairment levels of DUI. A reduction or amendment of the pending charges to a lower impairment level will still result in a revocation in Illinois as Illinois does not have any graduated scheme. Therefore, to avoid a license revocation, any amendment or reduction must be to an offense that will be recognized separately (i.e. Reckless Driving) under the Illinois Motor Vehicle Code.
Assuming that the case will result in a conviction, it usually takes several weeks for the report of the conviction to reach the Illinois Secretary of State. However, upon receipt, the Secretary of State immediately serves a Notice of Revocation upon the affected driver by mailing same to the address listed with the Secretary of State's office.4The revocation's effective date is normally within a few days of mailing. On this note, you should ask the client whether they still live at the address listed on their Illinois driver's license. If not, they should be advised to change their address directly with the Secretary of State's Drivers Services Department forthwith as official notices from the Secretary are not forwarded and the failure of the driver to actually receive the notice does not affect the validity or effective date of the revocation.
In Illinois, license revocations are for a minimum of 1 year if the driver has never been previously convicted of DUI.5 Two DUI convictions within a 20 year period will result in a minimum revocation of 5 years,6 and three convictions within twenty years results in a minimum revocation of 10 years.7 A fourth conviction for DUI renders the driver permanently ineligible from applying for an unrestricted license in Illinois.8 It is the policy of the Secretary of State's office not to fully reinstate an otherwise eligible driver until they have first been issued a Restricted Driving Permit (RDP) and drove on it without incident for at least 9 months.
B) Restricted Driving Permit (RDP)-Eligibility and Conditions
Once a revocation is effective, the next issue is when, and under what conditions, one becomes eligible to apply for an RDP. In Illinois, an RDP may be issued for: a) driving to and from work as well as within the scope of the petitioner's employment related duties; b) to allow transportation of the petitioner or a family member for necessary medical care; c) to and from certain alcohol rehabilitative activities; (i.e. AA meetings), and d) for the petitioner to travel to and from classes at an accredited educational institution.9 The Secretary of State also will not issue permits for more than 12 hours a day or 6 days a week.10 Petitioners who have traffic tickets pending in any court (other than a DUI with a pending suspension) or who are also suspended or revoked for other reasons are ineligible to apply for an RDP until the other matters are resolved.11
Before one is eligible to apply for an RDP, a petitioner must obtain an alcohol evaluation from an agency licensed by the Illinois Office of Alcohol and Substance Abuse (OASA), and complete the treatment recommended therein at a treatment service provider licensed by OASA.12Depending on the treatment level at which a petitioner is classified by the evaluation, other requirements may also apply. The various treatment levels and other requirements are set forth as follows:
Level 1/Minimal Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours). Note-Level 1 can only be recommended for petitioners who, at a minimum: a) have no prior DUI dispositions or suspensions; b) submitted to chemical testing with a resulting blood alcohol level of less than .15; and c) were not diagnosed with any other recognized symptoms of substance abuse or dependence.
Level 2M/Moderate Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours) and an Early Intervention Counseling Program (Minimum of 12 hours). Note-Level 2M can only be recommended for petitioners who, at a minimum: a) have no prior DUI dispositions or suspensions; b) submitted to chemical testing with a resulting blood alcohol level of .15 to .19; and c) were not diagnosed with any other recognized symptoms of substance abuse or dependence.
Level 2S/Significant Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours), Substance Abuse Treatment, (Minimum of 20 hours) and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). Note-Level 2S will, at a minimum, be recommended for petitioners who: a) have at least 1 prior DUI disposition or suspension; and/or b) submitted to chemical testing with a resulting blood alcohol level of at least .20; and/or c) were diagnosed with other recognized symptoms of substance abuse.
Level 3 High Risk/Dependent - Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). In addition, at the hearing the Petitioner will have to submit proof of establishment of an ongoing support/recovery program (i.e. regular attendance at AA meetings for at least 6 months and having obtained an AA sponsor). Petitioner will also have to document at least 12 consecutive months of abstinence from alcohol and drugs.
Level 3 High Risk/Non-Dependent - Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). In addition, at the hearing the Petitioner will have to submit proof of at least 12 consecutive months of non-problematic use of alcohol (or abstinence if it had been recommended by an evaluator or treatment service provider) as well as abstinence from drugs.
Once the foregoing conditions applicable to the petitioner have been met, they will need to obtain an updated alcohol evaluation from either the original evaluator or the treatment service provider.13 If the petitioner has never previously been revoked for a DUI conviction, they are eligible for the appropriate type of administrative reinstatement hearing at this point. However, if the petitioner had previously been revoked for another DUI conviction, they are ineligible for a hearing until the revocation has been in effect for at least one year.14
C) Informal vs. Formal Reinstatement Hearings
The next step is to determine the type of reinstatement hearing applicable. An informal hearing is available for petitioners who are seeking an RDP and/or full reinstatement and have neither previously been convicted of DUI nor had a statutory summary suspension from a previous DUI.15 All other petitioners must apply for relief through a formal hearing.16
Informal hearings are conducted at many Secretary of State Drivers Service facilities throughout the State. There is no requirement that an informal hearing be requested in writing. A petitioner may retain an attorney to represent them at the hearing. Informal hearings are normally conducted on a "first come-first served" basis. Petitioners must submit, at a minimum: the original alcohol evaluation and, if necessary an updated evaluation; appropriate documentation verifying completion of the recommended level of counseling; a letter verifying employment schedules and any scope of employment driving that may be required and/or a current school schedule, and, if applicable, appropriate letters documenting abstinence and/or ongoing support group (i.e. AA) involvement.17 At the hearing, it is the petitioner's burden to establish by clear and convincing evidence that; 1) the alcohol and/or drug problem has been resolved;18 2) that the petitioner will be a safe and responsible driver and the issuance on an RDP will not endanger the general public;19 and 3), that an undue hardship is currently being suffered as a result of the inability to legally operate a motor vehicle.20
The decision from the informal hearing is usually mailed to the petitioner within 3 to 4 weeks after the hearing. If the petitioner was approved for an RDP, the letter will be accompanied by a set of instructions on additional steps that may be necessary, such as filing insurance proof, taking a driving test, etc. Once the petitioner receives the permit, they must drive on it for at least 9 months without incident before they will be considered eligible for full reinstatement. This requires another informal hearing for which the petitioner will have to obtain an updated evaluation. If the petitioner was denied at the informal hearing, the letter will explain the reason(s) for the denial, i.e., inconsistencies between the petitioner's testimony and the documents submitted, improper documentation, etc. Once the problem has been corrected, the petitioner may have another informal hearing, provided it has been at least 30 days since the last hearing.21 The testimony at an informal hearing is not recorded or transcribed in any way. The only "record" is a form filled out by the hearing officer and submitted to a review board along with the documentation submitted by the petitioner. Finally, there are no appeal procedures following an informal hearing.22
Petitioners who are ineligible for informal hearings must proceed with a formal hearing. Formal hearings differ from informal hearings in a variety of ways. Initially, formal hearings are only available in Chicago, Joliet, Springfield or Mount Vernon. A request for a formal hearing is made in writing by the petitioner or their attorney. The Secretary of State's office then mails a Notice of Hearing to the petitioner (and their attorney if applicable). The Notice sets forth the date, time and place of the hearing and is accompanied by a list of the documentation required to be submitted at the hearing23. Once the hearing date has been assigned, it can only be continued for good cause shown.24
A formal hearing is conducted by an appointed hearing officer who administers an oath to the petitioner (and any witnesses), takes testimony, issues subpoenas upon request, and rules on objections made during the hearing. The Secretary of State is represented by an appointee who acts as a prosecutor during the hearing. The petitioner's burden of proof (resolution of alcohol/drug problem, safe driver and undue hardship) is the same as described above for informal hearings. Official notice may be taken of the decisions of any prior hearings as well as any documents (i.e., evaluations, treatment documents, Notices of Summary Suspensions) previously submitted.25 The hearing is recorded either by an electronic recording system or a court reporter. If requested, a transcript (or copy of the cassette tape of the hearing) can later be ordered by the petitioner at their own expense. After the conclusion of the hearing, the hearing officer reviews the entire record, makes findings of fact and conclusions of law, and prepares a recommendation. This is then sent to a review board which either adopts or rejects the recommendation and a written Order is prepared and mailed to the petitioner and their attorney, usually within 6 to 8 weeks.26 If the petitioner was approved for an RDP, the Order will be accompanied by a set of instructions on additional steps that may be necessary, such as filing insurance proof, taking a driving test, etc. Once the petitioner receives the permit, they must drive on it for at least 9 months without incident before they will be considered eligible for full reinstatement. This requires another formal hearing for which the petitioner will have to obtain an updated evaluation and any applicable letters regarding abstinence, employment and support group attendance. If the petitioner was denied relief at the formal hearing, the Order will set forth in detail the reason(s) for the denial, i.e., inconsistencies between the petitioner's testimony and the documents submitted, improper documentation, etc. If a petitioner is denied relief, they must wait 4 months before they are eligible for a subsequent hearing. The Order constitutes a final administrative decision which is subject to review under the Illinois Administrative review Law.27
D) Breath Alcohol Ignition Interlock Devices (BAIID)
In addition to the foregoing requirements, many petitioners will also be required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on their car as a further condition of the issuance of an RDP. Simply stated, a BAIID is a breathalyzer wired into the ignition system of an automobile. Before a BAIID-equipped car can be started, the driver must provide a breath sample into the device. If the sample registers above the alcohol setpoint (currently 0.025 breath alcohol concentration28), the car is rendered incapable of starting, or "locked out". Petitioners who meet any of the following criteria are designated "BAIID Eligible Petitioners," must have formal hearings and must have a BAIID device installed within 14 days of the issuance of any RDP.
1) Any petitioner who had a DUI arrest on or after January 1st, 1982 which resulted in the loss of driving privileges who then received driving relief after a formal or informal hearing and thereafter received another DUI resulting in another loss of driving privileges;
2) Any Petitioner who received a Judicial Driving Permit (JDP) and within 3 years after the date the JDP was issued, received another DUI and had to seek driving relief at an administrative hearing;
3) Any petitioner classified as Level 3 Dependent with at least 6 but less than 12 months of abstinence from alcohol and/or drugs at the time of the hearing;
4) Any petitioner with 3 DUI dispositions29if:
a) The last DUI arrest occurred within 3 years of the date of the hearing; or
b) Any of the DUI dispositions involved a breath or blood concentration of 0.20 or more.
5) Any petitioner with 4 or more DUI dispositions.30
When the RDP is mailed to a BAIID Eligible Petitioner, it is accompanied by a list of approved installers where the device can be obtained. The petitioner has 14 days to have the device installed and can only operate the vehicle for the purpose of obtaining the BAIID device until it has been installed. Any violation of this requirement will result in the immediate cancellation of the RDP.31
STATUTORY SUMMARY (IMPLIED CONSENT) SUSPENSIONS
An Illinois licensed driver arrested in another state for DUI who subsequently refused to submit to chemical testing will have their license suspended by the Illinois Secretary of State upon receipt of a report from the State where the incident occurred.32
The Illinois Vehicle Code does not specify the length of the suspension as it is classified as "discretionary".33 However, the Secretary of State's office typically will issue a 6 month suspension, the same duration applicable to a statutory summary suspension for a first time offender who refuses chemical testing in this State after being arrested for a DUI. The affected driver presumably has a right to a judicial or administrative hearing in the circuit court of venue for the arresting agency to contest the arrest and/or the "refusal." In addition, the driver can both contest the suspension at a formal hearing,34 and/or request the issuance of an RDP. If the driver is only seeking an RDP, that can be done at a formal hearing. If the driver is subsequently convicted of the DUI charge, then the length of the implied consent suspension served will automatically be credited against the minimum period of revocation imposed once the Notice of Revocation is issued by the Secretary of State.35
RAMSELL & ASSOCIATES, LLC
128 S. County Farm Rd.
Wheaton IL 60187