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Representing the Revoked or Suspended Driver Before the Office of the Secretary of State

This is an abbreviated version of the chapter appearing in the publication "Defending DUI and Related Cases" published by the Illinois Institute of Continuing Legal Education, Springfield, IL. 2009 Edition

© The Davis Law Group, P.C. All Rights Reserved Reproduction prohibited without permission of the author

I. The Administrative Hearing Process Generally

The Secretary of State's Office has undergone sweeping changes over the last 25 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 this chapter seeks to assist the general practitioner in representation of the revoked or suspended driver.

1. (1.2) 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).

2. (1.3) Discretion Vested in Secretary of State

Broad decision-making latitude is accorded administrative agencies, including the Secretary of State's Office, and extends to the authority of an agency 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). For 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).

3. (1.4) Standard of Administrative Review

Contributing further to the "wide-berth" accorded administrative agencies in the exercise of their discretionary functions is the rule that 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. (1.5) 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. (1.6) 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).

2. (1.7) Exception to Requirement of Hearing

The only exception to the requirement of a hearing above (1.6) 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. (1.8) 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. (1.9) Formal and Informal Hearings

Currently, as measured from the time of application for hearing until the ultimate rendering and entry of a final order, a formal hearing may take an average of 3-4

months. On the other hand, an informal hearing may take an average of only 4-6 weeks. 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.

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

2. (1.10) 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. (1.11) Issues at 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. (1.12) Petitions for 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. (1.13) Petitions for 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.

II. Preparing to Represent the Client Whose License is Suspended or Revoked as the Result of an Alcohol/Drug Related Offense(s).

A. (1.14) 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

(2) Suspension for violation of the Illinois Implied Consent Law Prior to January 1, 1986 under 625 ILCS 5/11-501.1 or suspension under the Illinois Summary Suspension Law as a second or subsequent offender under 625 ILCS 5/6-208.1(f)(2); or

(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) Suspension or revocation for a non-alcohol/drug related reason, but the client previously has a DUI disposition or summary suspension, regardless of whether any suspension or revocation (or court supervision) is still in effect.

B. (1.15) Preparation of 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. (1.16) Alcohol Evaluations

The client shall have an alcohol or 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.

2. (1.17) 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. (1.18) Evaluation Classifications and Requirements for Each Classification

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.

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