Representing Revoked or Suspended Drivers Before The Office of The Secretary of State

By The Davis Law Group, P.C.

The Secretary of State's Office has undergone sweeping changes over the last 30 years as a result of increased enforcement of DUI laws and a consequent increase in the number as well as length of revocations/suspensions; changes in public attitudes regarding alcohol related driving offenses; and stricter regulations and policies of the Office of the Secretary of State. As a result, favorable consideration of petitions for relief from orders of revocation/suspension is by no means certain.

Provisions of the Illinois Vehicle Code (625 ILCS 5/1-101, et seq.), particularly as they relate to the revocation/suspension of drivers' licenses and driving privileges as well as the interpretation thereof by the courts has become increasingly complex. At the same time, the rules and regulations as well as the hearing procedures in the Secretary of State's office have likewise become complex and often bewildering (92 Ill. Administrative Code, ch. II, sec. 1001 et. seq.) These factors, together with the restrictive consideration accorded to requests for relief have resulted in a relatively high rate of denial of such applications.

The attorney representing a petitioner cannot alter the general policies or attitudes of the Secretary of State as they relate to its approach to the DUI problem and its restrictive consideration of requests for relief from orders of revocation/suspension. These are matters to be addressed, if necessary, legislatively; on administrative review; or subsequent appeal. The attorney can, however, be prepared with a detailed knowledge and understanding of the applicable statutes, rules, regulations and policies of the Secretary of State's Office.

Through adequate and competent preparation, one can effectively and successfully represent his or her client. It is upon this principle and premise that these materials seek to assist the general practitioner in representation of the revoked or suspended driver.

1. Statutory Grant of Authority

The Secretary of State's Office exercises quasi legislative (rulemaking) powers as well as quasi judicial (adjudicatory) powers in the administration and enforcement of the provisions of the Illinois Vehicle Code. 625 ILCS 5/2-104(a), (b) and 2-118(a).

The administrative rules of the Secretary of State's Office which implement the Secretary of State's rulemaking and adjudicatory powers under the Illinois Vehicle Code, are at 92 Illinois Administrative Code, ch. II, secs. 1001.10 et. seq. These rules and regulations have the force and effect of law and carry with them a rebuttable presumption of regularity and validity. Northern_Illinois_Automobile_Wreckers_and Rebuilders_Association_v._Dixon, 75 Ill. 2d 53, 387 N.E. 2d 320 (1979); Anderson_v._Edgar, 100 Ill. Dec. 935, 497 N.E. 2d 1297 (Ill. App. 4th Dist. 1986); O’Neil v. Ryan, 301 Ill.App.3d 392, 703 N.E.2d 511, 234 Ill.Dec. 650 (1st Dist. 1998); Cisneros v. White, 337 Ill.App.3d 93, 785 N.E.2d 99, 271 Ill.Dec. 448 (1st Dist. 2003).

2. Discretion Vested in Secretary of State

The Secretary of State has broad decision making authority, and this extends to its authority to construe statutory provisions and judicial decisions within its sphere of expertise. Scott_v. Edgar, 152 Ill. App. 3d 221, 105 Ill. Dec. 878 (Ill. App. 4th Dist. 1987). As an example, the decision to grant or deny a restricted driving permit is permissive and not mandatory and before a restricted driving permit is issued, the Secretary of State must weigh the public interest against the hardship suffered by the applicant. Considerable discretion is given the Secretary in this regard. Foege_v._Edgar, 110 Ill. App. 3d 190, 441 N.E. 2d 1267 (1st Dist. 1982), Murdy v._Edgar, 73 Ill. Dec. 722, 454 N.E. 2d 819 (4th Dist. 1983); affm'd at 103 Ill. 2d 384, 469 N.E. 2d 1085. (1984); Cisneros v. White, 337 Ill.App.3d 93, 785 N.E.2d 99, 271 Ill.Dec. 448 (1st Dist. 2003).

3. Standard of Administrative Review

Courts of review will not disturb the decision of an administrative agency unless the decision is contrary to the manifest weight of the evidence. The reviewing court will not reweigh the evidence introduced at a hearing or make an independent investigation or determination of facts. Menning_v._Department_of Registration and Education, 14 Ill. 2d 553, 153 N.E. 2d 52 (1958). Murdy_v._Edgar, supra. The findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct. 625 ILCS 5/3-110.

B. Initial Interview of Client

Initially, the attorney representing a client before the Office of the Secretary of State should determine if a hearing is necessary or whether some administrative solution short of a hearing may resolve a client's problem.

The attorney should closely question his/her client as to the basis for the revocation or suspension of a driver's license and privileges and in order to verify the information provided, should obtain a court purposes abstract of the client's driving record from the Secretary of State. In the event time considerations do not permit awaiting a written response, a telephone inquiry to the Driver's Services Division of the Secretary of State's Office in Springfield, providing the client's driver's license number, can produce a more immediate answer.

If the client has alcohol-related offenses the attorney should have the client provide a complete history of such offenses, including offenses that have occurred in foreign states. In order to verify the client’s arrest history, again counsel should obtain a court purposes abstract of the client’s driving record. Additionally, counsel should contact the Secretary of State’s office and obtain a Problem Driver Pointer System (“PDPS) check of the client’s record to determine if there are out of state offenses. PDPS is a national data basis designed to check any driver’s foreign state ‘history’.

1. When a Hearing is Required

A hearing is always required where:

(a) the order that has been entered against the client is the result of a mandatory revocation of the client's license which is indicated on the client's driving abstract by a type action code "01", e.g., a revocation for DUI as provided under 625 ILCS 5/6-205.

(b) the client's license has been revoked by discretion, indicated by a type action code "02", e.g. revoked for multiple moving violations as provided under 625 ILCS 5/6-206(a)(3).

(c) the driver has a discretionary suspension as indicated by a type action code "03", e.g., as the result of the accumulation of at least three (3) moving violation convictions within a twelve (12) month period. 625 ILCS 5/6-206(a)(2).

(d) The client held a Monitored Device Driving Permit (MDDP) which has been cancelled as a result of the entry of a conviction or order of court supervision for the offense of driving while suspended, leaving the scene of an accident involving personal injury or death, DUI, reckless driving, violation relating to an ignition interlock device, fleeing or attempting to elude (misdemeanor or aggravated), street racing (misdemeanor or aggravated) or any offense for which alcohol or drugs is an element of the offense (and the use of a motor vehicle was involved) or unauthorized de-installation of a breath alcohol ignition interlock device (BAIID) and now wishes to seek a RDP or reinstatement (upon expiration of extended period of the statutory summary suspension). 625 ILCS 5/6-206.1(c-1) and 625 ILCS 5/11-501.1(l).

2. Exception to Requirement of Hearing

An exception to the requirement of a hearing is in the case of a discretionary suspension where the suspension is based upon violations of a sufficiently low point total so as to qualify that person automatically, upon application, for a probationary license with full driving privileges. If a person so qualifies, it will be indicated by the prefix "p" appearing by the driver's license number on the Order of Suspension received by the client.

C. Types of Hearing.

There are two (2) types of hearings for available to those seeking driving relief. The attorney representing the revoked or suspended driver must first determine whether a formal hearing is necessary or whether the client is eligible for an informal conference which may result in a more expeditious resolution of the client's problem, without diminishing or delaying the chances for a favorable determination.

1. Formal and Informal Hearings

A formal hearing is always required where:

(1) The client has multiple DUI convictions or implied consent violations (not including zero-tolerance suspensions (625 ILCS 5/11-501.8)) arising out of different occurrences (including those which have occurred out of state and do not necessarily appear on the client’s Illinois driving record). Note that DUI supervision dispositions and convictions or supervisions for reckless driving (reduced from DUI) do not constitute a disqualification for those seeking an informal hearing under this rule;

(2) The client's license and/or privileges are revoked, suspended or cancelled as the result of an offense involving a death;

(3) The client is seeking the modification or rescission of a discretionary order of suspension or revocation;

(4) The client’s license is revoked pursuant to 625 ILCS 5/6-205(a)(1) (e.g., as the result of a pending charge of reckless homicide (aggravated DUI involving death); or

(5) The client is required to have a BAIID device as a condition of receiving driving privileges.

92 Ill. Administrative Code, ch. II, sec. 1001.300 (b); 92 Ill.Administrative.Code, ch.II sec. 1001.441(c).

2. Other Considerations

The practitioner should keep in mind that before electing to proceed with an informal hearing, this type of hearing does not constitute a final administrative decision. Accordingly, if the informal decision is not favorable to the client, it will still be necessary to proceed with a formal hearing in order to obtain a final appealable decision. 92 Ill. Administrative Code, ch. II, sec. 1001.360 (a); 625 ILCS 5/3-101.

For this reason an informal hearing should not necessarily be pursued unless counsel, after a review of the facts, evidence to be presented, applicable statutes and rules of the Secretary of State, is of the opinion that such a hearing is likely to be successful.

D. Issues at a Hearing

Illinois Courts have had an opportunity to consider the issues to be addressed when determining whether relief from an order of revocation or suspension was proper.

The Courts have identified the main issues to be considered as:

(a) The Secretary of State's statutory duty to protect the public safety and welfare, i.e., the degree of risk posed by returning the petitioner to the highways; and

(b) The degree of hardship suffered by the petitioner as the result of the loss of driving privileges.

As discussed below, the courts have attempted to determine the appropriate weight to be accorded these competing interests.

1. Restricted Driving Permits

In Murdy_v. Edgar, supra, the Illinois Appellate Court, later affirmed by the Supreme Court, reviewed the standards to be considered by the Secretary of State in determining whether an applicant should be granted, upon his application, a restricted driving permit:

Granting a restricted driving permit is permissive and not mandatory, and before a restricted permit is issued, the Secretary must weigh the public interest against the hardship suffered by the applicant. Murdy, 73 Ill. Dec. 722 at 726.

The public interest has previously been defined by the Court in Foege_v._Edgar, supra:

Since the legislature has expressly given the Secretary of State discretion under the statute, the Secretary of State must exercise the discretion based upon the public interest. This means that the Secretary of State should not issue a restricted driving permit unless he has determined that granting the applicant a restricted driving permit will not endanger the public safety or welfare, then the Secretary of State should carry out the purpose of the statute by granting the applicant a restricted driving permit. Foege, 65 Ill. Dec. 753 at 755.

2. Reinstatement

The Court in Murdy also defined the issues to be considered by the Secretary of State upon a petition for full reinstatement, 625 ILCS 5/6 208(b), and further defined the differences to be considered in the granting of a restricted driving permit versus full reinstatement:

The standard to be applied by the Secretary under section 6 208 is similar to that involved when issuing a restricted driving permit. (See Foege.) In each case the pertinent inquiry is the danger to the public in allowing the applicant to drive. Under sections 6 205 and 6 206, however, hardship is to be taken into consideration apart from public safety and welfare. Section 6 208 mandates no consideration of hardship to the applicant. A further difference is in the scope of rights granted. Under section 6 205 and 6 206, a restricted driving permit may only be issued for driving between a residence and a place of employment or other proper limits. Relief under section 6 208 contains no limitations. Foege, 73 Ill. Dec. 722 at 727.

A. Introduction

Generally, the phrase "alcohol/drug related hearings" includes those matters where the underlying basis for the Order of Revocation or Suspension is related to:

(1) Conviction of driving while under the influence of alcohol, other drugs, or combination thereof. 625 ILCS 5/11 501 (or a similar provision of a local ordinance); or

(2) Suspension pursuant to the provisions of 625 ILCS 5/11-501.6 (accident involving death or a type A injury) or 625 ILCS 5/11-501.8 (zero-tolerance law);

(3) Conviction for the offense of DUI or the offense of driving while impaired in a foreign state and revocation pursuant to 625 ILCS 5/6 206(a)(6); or

(4) a current suspension or revocation for a non-alcohol-related reason but the client’s license has previously been suspended or revoked within the last ten years for a cause defined in 1, 2, or 3 above or pursuant to 625 ILCS 5/11-501.1, regardless of whether that suspension or revocation is still in effect; or

(5) when there is credible evidence that there has been an arrest or implied consent suspension for boating or snowmobiling under the influence within the last 5 years or the petitioner has had an alcohol- or drug-related criminal record as defined in 92 Ill.Admin. Code §1001.410. 92 Ill.Admin. Code §1001.420(m)(1)

(NOTE: Under number (4) and (5) above, an investigative evaluation must be performed, rather than a more extensive alcohol/drug uniform report, and the client must only complete risk education or treatment if recommended by the evaluator.).

B. Documentary Evidence

Prior to hearing, counsel should take steps to instruct the client to prepare and, where appropriate, assist the client in preparing or obtaining documentary evidence required and/or suggested under the rules of the Office of the Secretary of State.

1. Alcohol Evaluations

The client shall have an alcohol/drug evaluation completed by an agency licensed by the Illinois Department of Human Services, Division of Alcoholism and Substance Abuse (“DASA”) and meeting the requirements of the Secretary of State and DASA. This evaluation cannot be more than six (6) months old as of the date of hearing. In the event the applicant has an evaluation that is more than 6 months old, then an updated evaluation must be completed by the same or agency or by the agency that provided the client’s treatment. If the agency that conducted the original evaluation or treatment has transferred the client’s file to another agency (and such transfer has been approved by DASA) due to closure, etc. of the originating agency then the agency now in lawful possession of the client’s file may provide the update evaluation.

In many cases the client has had a previous hearing in the Secretary of State's Office. If this is the case, it is essential that counsel obtain a copy of the previous evaluation, treatment documentation and any other documentation submitted at the hearing as well as the order (if the hearing was a formal hearing) or the letter of denial (if the hearing was an informal hearing). These documents can be obtained by simply having the client execute a document authorizing release of the information to the attorney and submitting it to the Secretary of State’s Office, Department of Administrative Hearings, Support Services Division. The Secretary of State will then notify counsel of the cost. These documents will assist counsel in verifying the consistency of evidence to be presented at any new hearing. In the event the person has been denied relief at a prior hearing (formal or informal), the evaluator is required to prepare a letter addressing the reasons for the prior denial. 92 Ill. Administrative Code, ch. II, sec. 1001.440;

In the author's opinion, the alcohol evaluation is probably the single most important item of evidence to be submitted on behalf of the client. Therefore, it follows that the selection of an experienced, competent evaluator becomes equally important. Counsel should be certain of the evaluator's qualifications and most importantly, the evaluator's experience in preparing evaluations to be submitted to the Office of the Secretary of State.

The author makes it a practice to provide the alcohol evaluator with a 'background letter' based upon an interview with the client and the relevant documentation referred to above which summarizes the client's driving history; facts concerning client's alcohol / drug related arrests; criminal history; B.A.C. levels, if available; personal information concerning the client and summary of the client's perception of his/her alcohol/drug use history as well as the client’s treatment history, if any. Also, the evaluator should, without fail, be provided with a copy of any formal order or informal letter decisions entered by the Secretary of State concerning a client's previous application as well as copies of any previous alcohol evaluations or treatment documentation on record with the Secretary of State.

Counsel should make arrangements to receive the completed evaluation in a sufficient amount of time prior to the hearing in order to review same and satisfy oneself that the evaluation is in proper order, accurate and meets the requirements as set forth by the Office of the Secretary of State. 92 Ill. Administrative Code, ch. II, sec. 1001.440.

Note: Effective February 1, 2012, DASA has revised the alcohol/drug evaluation uniform report and the SOS has indicated in a public notice that all licensed agencies (with the sole exception of Central States Institute in Cook County) are required to use the new format as of that date. The SOS will not accept any evaluation initiated on or after that date that is not completed on the new form.

2. Risk Education

For those individuals other than those classified as High Risk the client shall have completed and passed a risk education course offered by an agency licensed by DASA and provide written certification of completion of such a course. This course must have been completed since the client's last alcohol related violation. 625 ILCS 5/6 205(c); 92 Ill. Administrative Code, ch. II, sec. 1001.440(a)(5);

3. Evaluation Classifications and Requirements

Effective November 1, 1992, DASA adopted new rules that created a new classification system for DUI offenders and minimum requirements to be fulfilled for each classification level. These classifications and treatment requirements, as subsequently amended, have been adopted by the Secretary of State. 92 Ill. Administrative Code, ch. II, sec. 1001.440. The classifications and the recommendations applicable to each classification as currently in effect under the Secretary of State regulations are as follows:

Level I - Minimal Risk

Defendants classified at this level must have

1. no prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
2. a blood-alcohol concentration (BAC) of less than .15 as a result of the arrest for DUI; and
3. no other symptoms of substance abuse or dependence.

Level II - Moderate or Significant Risk

1. Moderate Risk

   Defendant classified at this level must have

   1. no prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
   2. a BAC of .15 to .19 or a refusal of chemical testing as a result of the arrest for DUI; and
   3. no other symptoms of substance abuse or dependence.


2. Significant Risk

   Defendants classified at this level must have

   1. one prior conviction or court-ordered supervision for DUI or one prior statutory summary suspension or one prior reckless driving conviction reduced from DUI; and/or
   2. a BAC of .20 or higher as a result of the most current arrest for DUI and/or
   3. other symptoms of substance abuse.

Level III - High Risk

Defendants classified at this level must have

1. symptoms of substance dependence; and/or
2. two prior convictions or court-ordered supervisions for DUI or two prior statutory summary suspensions or two prior reckless driving convictions reduced from DUI within a ten-year period from the date of the most current (third) arrest.

4. Classification Recommendations and Required Documentation

Level I - Minimal Risk

Completion of a minimum of ten hours of alcohol and drug risk education.

Level II - Moderate Risk

Completion of a minimum of ten hours of alcohol and drug risk education and a twelve hour early intervention program.

Level II – Significant Risk

Completion of a minimum of ten hours of alcohol and drug risk education and a outpatient treatment program (minimum twenty hours) followed by an aftercare plan.

Level III - High Risk

For defendants with identified symptoms of dependence:

1. completion of an intensive outpatient or outpatient substance abuse treatment program (minimum of 75 hours) followed by an aftercare plan, or
2. completion of a residential or inpatient substance abuse treatment program followed by an aftercare plan.

For defendants without identified symptoms of dependence:

completion of an outpatient treatment program (minimum of 75 hours) followed by an aftercare plan.

For High-Risk-Non Dependent individuals the program must provide a separate letter containing a detailed explanation of why dependency has been ruled out. See 92 Ill. Administrative Code, ch.II, sec. 1001.440 (b)(4).

Note: If the treatment provider does not require treatment for an individual classified as Moderate, Significant or High Risk to complete at least the minimum treatment requirement then a rationale for that decision must be provided. This is referred to as a Treatment Waiver. See 92 Ill. Administrative Code, ch.II, sec. 1001.440 (b)(6).

5. Character Reference and Drinking Habit Verification Letters

Character reference letters and letters verifying the client's current drinking habits should be prepared. A minimum of three (3) letters are required if the client has been classified as High-Risk-Non-Dependent but are suggested even if classified at a lower level. Such letters should indicate the relationship of the writer to the applicant, how often he/she sees the client, the client's current drinking habits as well as past habits if they have changed and if so, when. Also the writer should indicate why he believes the applicant's habits have changed and give general opinion as to the applicant's maturity, responsibility and risk to receive future alcohol related violations. All letters should be fully consistent with the information contained in the assessment.

6. Abstinence/Drinking Habit Verification Documents

In the event the client has been classified as High Risk (Dependent), a minimum of three (3) letters verifying the client's abstinence meeting Secretary of State requirements. If the client has been classified as High Risk (Non-Dependent) three (3) letters verifying the client’s abstinence or non-problematic drinking pattern must be provided. Preparation of letters are suggested even if the client is presenting at a lower classification. Counsel should be aware that the Secretary of State rules provide that in cases of applicants with a clinical impression of alcoholism/chemical dependence, a minimum period of twelve (12) months of abstinence is required with certain limited exceptions. 92 Ill. Administrative Code, ch. II, sec. 1001.440(e)(f).

7. Documentation of Self Help Group Involvement

If the client has been classified as High Risk-Dependent and the client is a member of Alcoholics Anonymous (AA) or other self help group, in addition to the three (3) abstinence letters required above, the client should provide at least three (3) letters from program co support group members meeting the requirements of 92 Ill. Administrative Code, ch. II, sec. 1001.440(g) (i). A restricted driving permit may be issued to allow an applicant to drive to and from such self help group meetings or counseling and accordingly counsel should not neglect to request such relief if appropriate. 92 Ill. Administrative Code, ch. II, sec. 1001.440(j).

(Note: the SOS provides forms that may be completed in lieu of letters. These forms are available on the SOS website at www.cyberdriveillinois.com.)

In O'Neil v. Ryan, 301 Ill. App. 3d 392, 703 N.E.2d 511, 234 Ill. Dec. 650 (1st Dist. 1998), the plaintiff had been classified as Level III (dependent). The Secretary of State found that the plaintiff had not established a sufficient ongoing support system. The plaintiff claimed that his support system consisted of (a) participation in athletic activities with his brother and (b) talking to family members when he has problems or feels the urge to drink.

The court found that such "unstructured and sporadic contact does not fit the definition of support/recovery program found in regulations." 703 N.E. 2d at 515.

[P]roviding support for an alcoholic involves much more than just providing a willing ear when he has the urge to talk or filling his time with new activities. A proper support/recovery program provides a framework which helps the alcoholic identify the signs of relapse and gives the alcoholic the tools to prevent it. Neither plaintiff nor the members of his support group have described such a framework. Id.

This case strongly suggests that in the absence of a strong, principled program specifically designed to help the recovering alcoholic avoid relapse, it will be rejected by the Secretary of State as not meeting the regulation's requirement of an ongoing support/recovery program for those classified as High Risk (Dependent).

If the client is not involved in such a structured, organized and recognized program such as AA or NA, the client will be required to identify what program the client has established and how it accomplishes the goal of keeping the client abstinent. This again must be documented by three (3) independent sources who can testify at a hearing or provide written documentation in the form of letters which meet the requirements found at 92 Ill. Administrative Code, ch. II, sec. 1001.440(i)(1).

8. Treatment Records

Copies of any treatment records including a treatment verification form, discharge summary, treatment plan, continuing care plan and continuing care status report are necessary where the client has completed a program of counseling or other intervention dealing with a previous alcohol/drug related problem. Treatment documents are required for all levels other than Minimal Risk individuals. 92 Ill. Administrative Code, ch. II, sec. 1001.440(m).

9. Documentation for Employment, Medical or Educational Relief

Completion of a letter from the client's employer must be provided when the client's petition includes a request for employment relief. This letter should comply with the requirements as set forth in 92 Ill. Administrative Code, ch. II, sec. 1001.420(b)(1). If the person seeks medical, child care, elder care or educational relief the documentation of any of these requests should comply with 92 Ill. Adm. Code, ch. II sec. 1001.420 (b)(2-4).

If the client is required to demonstrate an undue hardship for employment purposes in order to obtain a RDP (i.e., the client is not eligible for reinstatement) then the employer should document the nature of the undue hardship as part of its letter.

C. Preparation of Testimony

The practice of attempting to prepare a client's testimony immediately prior to a hearing should be avoided. Instead counsel should take appropriate steps to review and prepare the testimony of the client as well as that of any witnesses well before the hearing.

The client should be acquainted by counsel with all procedural aspects of the hearing and otherwise be acquainted in general with the atmosphere he can expect to encounter. The overall aim should be to reduce the apprehension of the client as much as possible and thereby improve the client's performance at the time of hearing.

1. Review of Alcohol Assessment

It is of the utmost importance is that the client reviews the alcohol assessment and treatment documentation with counsel to verify its accuracy and completeness. Any errors or omissions should be noted and same should be corrected by the program who prepared the document.

The client obviously should be prepared to testify consistently with all information contained in the evaluation including:

(1) Facts surrounding all alcohol related arrests (including those where supervision was granted or the offense was reduced to reckless driving);

(2) the client's past history regarding his use of alcohol/drugs;

(3) the client's current use of alcohol/drugs;

(4) the history of any alcohol/drug treatment received by client;

(5) the history of involvement in any self help support program such as Alcoholics Anonymous (for High Risk – Dependent individuals)

2. Testimony as to Undue Hardship

The client should be thoroughly prepared to testify as to the hardship suffered as the result of the loss of his license and privileges (if applying for hardship relief and not otherwise statutorily eligible for reinstatement in which case hardship need not be shown). In this regard see the definition of 'undue hardship' at 92 Ill. Administrative Code, ch. II, secs. 1001.410 and 1001.420(d). Also see 92 Ill. Administrative Code, ch. II, sec. 1001.420(i) and 1001.430(i).

3. Corroborative Testimony

In some cases, counsel may wish to call a witness to corroborate the testimony of the client, particularly as it relates to the client's history of alcohol/drug use. The witness should be an individual who has known the client for a significant period of time and who can testify as the client's drinking habits, particularly since the last alcohol related arrest of the client occurred. Additionally, this witness should also be interviewed by counsel in advance of the hearing to determine the consistency of the witness' potential testimony with that of the client and the information contained in the alcohol evaluation. Counsel should remember that any witness to be called will be excluded from the hearing until called to testify.

However, counsel should be mindful of the fact that since character / abstinence / drinking habit verification letters containing this same information are often required and admissible for this same purpose, it may not be ‘tactically’ advantageous to call a witness who then would be open to cross-examination.

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