Extension of the summary suspension or re-suspension
Any MDDP holder whose permit is canceled or whose summary suspension is extended may request a formal hearing to contest to be filed within 30 days of the effective date of such cancellation, extension or re-suspension. A $50.00 filing fee must be submitted at the time of the request. 625 ILCS 5/2-118, 92 Ill.Admin.Code Sec. 1001.444(f).
Typically, the evidence to be offered by the Secretary of State at the time of the hearing will consist of the BAIID monitor reports, the driver’s response to a request for an explanation and the Secretary of State BAIID Division reason for rejecting the explanation.
An MDDP cancellation, an extension of a summary suspension or re-suspension constitutes a proceeding wherein the state seeks to deprive a person’s property interest in a permit or further loss of driving privileges and is therefore subject to due process requirements. This begs the question of how due process is satisfied if the state is allowed to terminate this interest based only upon the printed record of a BAIID monitor report. In the author’s opinion, once the driver has presented a credible prima facie case that he/she was not consuming alcohol at the time in question or the BrAC result was not accurate based on what was consumed, the state should be required to present foundational evidence that the machine was properly certified, calibrated and otherwise properly working at the time of the incident before being allowed to take any action against the person. See People v. Orth, 124 Ill.2d 326, 530 N.E.2d 210 (1988). Also, see Justice Clark’s comments in Orth as to what type of evidence would be sufficient to establish a prima facie case in the case of a petition to rescind a statutory summary suspension.
Other provisions governing MDDPs
Upon issuance of the MDDP, the BAIID must be installed within 14 days. Until the device is installed, the person cannot operate a vehicle for any purpose other than to have the device installed. The installer must then notify the Secretary of State within 7 days that the device has been installed in the vehicle. See 625 ILCS 5/6-206.1(a); 92 Ill.Admin.Code sec. 1001.444(b)(2)(B).
As state above, the person can only operate vehicles with a BAIID installed, including vehicles that are owned, rented, leased, loaned, etc. The BAIID provider must download the device every 60 days unless the person’s suspension has been extended or he or she has been re-suspended as a result of a violation of the program, in which case the download period is reduced to 30 days. 92 Ill.Admin.Code sec. 1001.444(c)(2).
If the person fails to submit a BAIID monitor report as required, then all future reports must be submitted within 37 days thereafter. Failure to submit the monitor report (without reasonable explanation from the person or the BAIID provider) will result in a notice requiring the report to be submitted within 10 days of the date of the letter. Failure to comply will result in a 3-month extension of the statutory summary suspension. If the person does not respond or cannot be located, the permit will be canceled. If the MDDP has already expired, then the person shall be re-suspended for twice the length of the original SSS and cannot receive any further driving relief during such time except through a hearing with the Secretary of State. 92 Ill.Admin.Code sec.1001.444(e)(7).
The person must comply with any service or inspection notification within five working days. 92 Ill.Admin. Code Sec.1001.444(c)(4); and must keep a separate journal for each vehicle of unsuccessful attempts to start the vehicle, test failures, retest problems, or other problems with the BAIID. See 92 Ill.Admin.Code sec. 1001.444(c)(5).
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