A Primer on Obtaining Driving Privileges through Formal Administrative Hearings

By John W. Callahan

One of the more common tasks for the attorney who represents clients in criminal traffic related charges is to obtain driving privileges for the client after he / she receives a conviction on a Driving Under the Influence of Alcohol charge.1 Illinois law currently states that the Secretary of State shall immediately revoke the license or permit of any driver upon receiving a report of the driver's conviction of a violation Section 11-501 of the Illinois DUI code or any local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drugs, intoxicating compounds.2 Typically, the first conviction that a client will receive for a violation of the DUI statute is on his or her second actual DUI arrest; the first arrest normally results in the client receiving a sentence of court supervision which is not a conviction for purposes of the Illinois Secretary of State. Thus, the typical first time DUI offender does not suffer the penalty of the revocation of his driver's license. With that in mind, this article is written on the premise that the client has received at least one conviction of a DUI charge, resulting in the revocation of his license.

Right versus privilege to drive

It is firmly established law that no person in Illinois has the right to drive an automobile. 3 The operation of a motor vehicle is a privilege and not a right, and the driver's license is issued in recognition of that privilege.4 With that in mind the Illinois Secretary of State can and will revoke your client's license when it learns of a conviction on a DUI charge. When the Secretary of State learns of a DUI conviction, 625 ILCS 5/6-205(a)2 applies and the client's license will be revoked for at least one year.

It is then the legal practitioner's task to obtain relief for the client so the client can begin driving legally again. The method for obtaining driving privileges for the client with a revoked license due to DUI is to obtain a formal administrative hearing through the Secretary of State. However, before petitioning the Secretary of State for a formal administrative hearing, the attorney should be aware that there are a number of tasks that should be thoroughly reviewed so as to give the client the best chance of obtaining driving relief.

Prior to obtaining a Hearing

It is advisable for the attorney looking to reinstate his client's driving privileges to obtain several preliminary pieces of information at a minimum: 1) A copy of a current Illinois abstract of the client's driving record; 2) A transcript of any and all formal administrative hearings heard before the Illinois Secretary of State; 3) All alcohol evaluations the client has obtained resulting from all DUI arrests;

First, the copy of the Illinois driving abstract is essential to the attorney interested in applying for reinstatement. The abstract will provide the attorney with all of the client's DUI convictions and statutory summary suspensions as well as any convictions of reckless driving reduced from a DUI and any driving while suspended or revoked convictions. While the DUI related traffic violations are the most important aspect of the client's driving abstract in attempting to reinstate the client's driver's license, it is important to look for other evidence of a failure to abide by the Illinois Motor Vehicle laws, e.g. several speeding tickets can show a disregard for the public safety which can make it even more difficult for your client to succeed at the formal hearing if not properly addressed. To obtain an abstract of the clients' driving record, either have the client obtain one from any Illinois Secretary of State Driver's License facilities (this is the fastest method) or prepare an Authorization for Release form signed by the client and request a Certified Abstract of Driving Record directly from the Secretary of State along with the required fee of twelve dollars.5

Second, the attorney should obtain the transcripts, orders and records of any and all previous hearings (whether they be denial orders or orders granting driving relief) from the Secretary of State. Without requesting this information from the Secretary of State, the attorney may find himself in a precarious situation should he come to realize that the client did not inform him of a previous order entered by the Secretary of State. As the credibility of the client's testimony at the hearing is a factor the Secretary of State considers as part of its decision to grant or deny driving privileges, obtaining the transcripts and orders will aid the attorney in preparing the client so as not to testify inconsistently with any previous hearings. To obtain the transcripts and orders, send a written request to the Department of Administrative Hearings in Springfield, along with an authorization for release of information signed by the client requesting any and all transcripts and orders from any and all previous hearings.6 This process normally takes 2-3 weeks and the Secretary of State will notify the attorney's office as to what the copying fee will be for the materials.

Third, it is critically important to know the level the client has been classified by the Alcohol Evaluation Department in the county or counties of all DUI arrests. This will determine what information the client will need to provide to the Administrative Hearing office at the time of hearing. For example, if the client is classified as a Level 1 – Minimal Risk, he will need to tender the following to the Secretary of State prior to being allowed a hearing: 1) An original Uniform Report evaluation if it is less than six months old or an updated evaluation within the past six months (an updated evaluation must be completed by the agency that completed the Uniform Report original evaluation); and 2) Documented completion of the DUI Risk Education Course (formerly known as remedial education).7

The requirements increase for a Level II – Moderate Risk. If the client is classified as a Level II – Moderate Risk, he will need to provide all of the documentation required above, but in addition, must provide documentation of completion of an early intervention program as well.8 The client who is classified as a Level II – Significant Risk must provide all of the lesser required documentation as described above and must also provide copies of his Individualized Treatment Plan, Discharge Summary, Aftercare / Continuing Care Plan, and a Continuing Care Status Report.9

The requirements for a client classified as Level III – Dependent include the following: all of the above required documentation as well as proof of establishment of a support / recovery program (usually Alcoholics Anonymous). This includes at least three letters from fellow members / participants who attest to the client's active involvement in the support program.10 Further, the client must submit at least three letters from individuals (family, friends, etc.) who can attest to the client's abstinence from alcohol and drugs for at least twelve months if seeking full reinstatement, but no less than six months if seeking a restricted driving permit.11 A client classified as Level III – Non-Dependent must provide the same documentation as the Level III – Dependent with the exceptions being that the Non-Dependent client does not need to provide proof of active involvement in a support program but must provide an additional report from the treatment provider explaining how dependency of the client was ruled out.12

Obtaining a Formal Hearing

In order to obtain a formal hearing with the Illinois Secretary of State to request either full or partial reinstatement of the client's driving privileges, written notice must be sent to the Secretary of State office requesting a formal administrative hearing. There are four locations in Illinois where a formal administrative hearing can take place: 1) Chicago; 2) Joliet; 3) Mount Vernon; and 4) Springfield. While there is much anecdotal evidence as to the Secretary of State location where the client has the best chance of succeeding at the request for reinstatement, that topic lies outside the scope of this particular article. The request for hearing should include the client's Name, Date of Birth, Driver's License Number and a statement requesting a formal administrative hearing along with the required $50.00 fee made payable to the Secretary of State.13

Continuance, Withdrawal, or Default from Hearing

If the attorney realizes that he is not ready to take the client to the formal hearing for whatever reason, there are three options: 1) Request a continuance; 2) Withdraw from the hearing; or 3) Default by not appearing at all. If the attorney is unavailable to attend the scheduled hearing for good cause shown (his own, not the client's), a request for a continuance should be sent to the location where he requested the formal hearing as soon as possible. The Secretary of State will not require the Petitioner to submit an additional $50.00 fee and a new hearing date will be provided as long as it receives notice of the request for continuance at least 14 days prior to the hearing14. If the attorney learns at the last minute that his client has not completed all of his required treatment and will not be allowed to proceed to a hearing without the information, the attorney should notify the administrative hearing office of his intent to withdraw from the hearing immediately. While sending the intent to withdraw to the Secretary of State will require resubmitting the $50.00 fee for the new formal hearing, the attorney can immediately request a new date for a formal hearing. Should the attorney and client not show up for the hearing, a default order of denial will be entered. The worst drawback to a default order is that the client will not be allowed to request a hearing until four months have passed in addition to being required to submit another filing fee.15

Steps to take for a Restricted Driving Permit

Rather than wait to apply for an administrative hearing for the client until he is eligible for full reinstatement, it is typically advisable to apply for a restricted driving permit well in advance of the full reinstatement date. If your client can show a hardship, you are authorized to request a hearing for a restricted permit only 90 days after the revocation of the license. Hardships can include the necessity of the client's employment that the client be able to drive to and from work or during the course of employment. Further, hardship can be proved and a restricted permit can be granted to attend educational related activities. Moreover, a restricted permit can be obtained to travel to and from alcohol treatment. Obviously, you need to provide written evidence of the hardship to the Secretary of State for them to grant you the restricted permit.

Substance of the Formal Hearing

The amount and type of questions asked at formal administrative hearings vary depending on the level of alcohol risk the client received at criminal DUI proceeding. The higher the level of risk associated with the DUI proceeding, the more questions will be asked at the formal hearing.

All clients should be prepared to give testimony relating to how much alcohol and in what timeframe they consumed alcohol on the day of the DUI arrest. The client should be prepared to testify as to his drinking pattern for the 12 months prior to obtaining all DUIs in question as well as their drinking pattern subsequent to all DUIs up to the present day. They will have to know how far, from what location, and the reason why they drove on the days of their DUI arrests. The client will most likely be asked why he was pulled over for the DUI arrests as well as whether or not the client felt intoxicated and at what time he was pulled over and arrested. It is extremely important to note that all of testimony given at the formal hearing should be consistent with previous hearings as well as previous alcohol evaluations. If there is any discrepancy between the testimony given at the hearing and any other previous hearings or evaluations, the client's credibility will be called into question and the Secretary of State can deny the request for reinstatement on that ground.16

The next series of questions that will be asked of most clients relate to symptoms of alcohol abuse. These include questions such as whether the client has ever complained of hangovers, whether the client's family has ever complained he has a drinking problem, and if the client ever missed work due to consuming alcohol or drugs. Further, did the client ever hide alcohol or pass out? Moreover, did the client learn the definition of alcohol abuse through treatment after the DUI proceedings.

Various other questions relative to alcohol abuse will be asked and for the attorney to advise the client to flat out deny any of these symptoms would be foolish (if not malpractice) as the Secretary of State will deny reinstatement for minimizing symptoms of abuse. Again, it is imperative to review the client's testimony at all previous hearings with the Secretary of State as well as all of his statements given to his alcohol evaluators to determine what, if any, symptoms of alcohol abuse he has related to others before. More than the symptoms themselves, inconsistent testimony relative to the symptoms is always a reason for the Secretary of State to deny your petition.

The final series of questions relating to alcohol treatment is typically for those clients who have been categorized as Level III – Dependent or Level III – Non-Dependent by the alcohol evaluation agency. These questions truly test the client's ability to testify credibly to alcohol treatment relative to Alcoholics Anonymous participation. Detailed questions as to what an alcoholic is will be asked of the Level III – Dependent candidate for reinstatement. These questions can include a recitation of the serenity prayer from Alcoholics Anonymous Big Book. Questions can be asked as to who the client's sponsor is and when the last time the client had an emergency call with his sponsor. Knowing the difference between an open and closed meeting of alcoholics anonymous is another question that will most likely be asked. The questions at this level are very detailed and are designed to weed out those who would attempt to testify falsely. Clients have been denied reinstatement because they did not know the actual physical description of the building where the AA meetings took place and for not knowing which of the twelve AA steps they were currently working on. Again, preparation is they key to guiding your client through these difficult, intensive questions.

Conclusion

As with most areas of practice, preparation is the key to succeeding in formal administrative hearings with the Secretary of State. The attorney should obtain all relevant documents prior to applying for reinstatement. The attorney should present to the client a written checklist of the items required by the Secretary of State so that there is no question if a hearing will actually be allowed to proceed. Finally, once the documentation is in place, the attorney should thoroughly prepare the client in anticipation of the testimony that will be extracted at the hearing so that the client can testify credibly and consistently with all of his previous hearings and evaluations.

1 625 ILCS 5/11-501

2 625 ILCS 5/6-205(a)2

3 People v. Gassman, 622 N.E.2d 845, Ill.App.2.Dist.,1993; People v. Mourillon, 463 N.E.2d 1337, Ill.App. 2 Dist.,1984.

4 People v. Sass, 494 N.E.2d 745, Ill.App. 4 Dist.,1986

5 Mail request to Department of Administration Hearings, Room 210, Michael J Howlett Building, Springfield, IL 62756

6 Mail request to Department of Administration Hearings, Room 210, Michael J Howlett Building, Springfield, IL 62756

7 Department of Administrative Hearings IH-22.2

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

13 625 ILCS 5/2-118, 92 IL ADC 1001.70

14 625 ILCS 5/2-118, 92 IL ADC 1001.70

15 Id.

16 92 Ill. Adm. Code Secs. 1001.100(q), 1001.420, 1001.430 and 1001.440(b)

John W. Callahan graduated from the University of Illinois at Champaign in 1992 and received his JD from DePaul Law in 1997. His primary practice is in criminal defense and formal administrative hearings.