Introduction
- Conviction and revocation for driving while under the influence of alcohol, other drugs, or combination thereof; or
- A statutory summary suspension or suspension due to an accident involving death or a type A injury or the zero tolerance law;
- 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 five years for a cause defined in 1 or 2 above, and the person was not previously required to submit an evaluation;
- 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 alcohol- or drug-related criminal record
Note Under number (3) and (4) 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.
Documentary Evidence
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 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 DASA has approved such transfer) due to the closure of the originating agency then the agency now in lawful possession of the client’s file may provide the updated evaluation.
In many cases, the client has had a previous hearing in the Secretary of State's Office you should 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 the release of the information and submitting it to the Secretary of State’s Office, Department of Administrative Hearings, Support Services Division. The Secretary of State will then notify the requestor of the cost. These documents will assist the provider 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 provider is required to prepare a letter addressing the reasons for the prior denial.
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.
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.
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 no prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
- a blood-alcohol concentration (BAC) of less than .15 as a result of the arrest for DUI; and
- no other symptoms of substance abuse or dependence.
Level II - Moderate or Significant Risk
- Moderate Risk - defendants classified at this level must have:
a. No prior conviction or court-ordered supervision for DUI and no prior statutory summary suspension and no prior reckless driving conviction reduced from DUI;
b. a BAC of .15 to .19 or refusal of chemical testing as a result of the arrest for DUI; and
c. no other symptoms of substance abuse or dependence.
- Significant Risk - defendants classified at this level must have:
a. 1 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
b. a BAC of .20 or higher as a result of the most current arrest for DUI and/or
c. other symptoms of substance abuse.
Level III - High Risk
Defendants classified at this level must have:
- symptoms of substance dependence; and/or
- 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.
Classification Recommendations and Required Documentation
Level I - Minimal Risk
Completion of a minimum of ten hours of alcohol and drug driver risk education.
Level II - Moderate Risk
Completion of a minimum of ten hours of alcohol and drug driver risk education and a twelve-hour early intervention program.
Level II – Significant Risk
Completion of a minimum of ten hours of alcohol and drug driver risk education and an outpatient treatment program (minimum of twenty hours) followed by an aftercare plan.
Level III - High Risk
For defendants with identified symptoms of dependence:
a.completion of an intensive outpatient/outpatient substance abuse treatment program (minimum of 75 hours) followed by an aftercare plan, or
b. completion of a residential or inpatient substance abuse treatment program followed by an aftercare plan.
For defendants without identified symptoms of dependence:
a. 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)(5).
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)(7).
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 given the 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.
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 is suggested even if the client is presenting at a lower classification. Counsel should be aware that the Secretary of State rules state that in cases of applicants with a clinical impression of alcoholism/chemical dependency, 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).
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 groups, 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)(1). 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(k).
Note: the SOS provides forms that may be completed instead 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 robust and 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 programs 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).
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).
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 outlined 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 to obtain an 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.
Preparation of testimony
The practice of attempting to prepare a client's testimony immediately before 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 with 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 the hearing.
Review of alcohol assessment
It is of the utmost importance 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 the program which prepared the document should correct the same. The client obviously should be prepared to testify consistently with all information contained in the evaluation including:
- Facts surrounding all alcohol-related arrests (including those where supervision was granted, or the offense was reduced to reckless driving);
- the client's history regarding his use of alcohol/drugs;
- the client's current use of alcohol/drugs;
- the history of any alcohol/drug treatment received by the client;
- the history of involvement in any self-help support program such as Alcoholics Anonymous (for High Risk – Dependent individuals)
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 definitions 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(c).
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 and who can testify as for the client's drinking habits, notably 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.
Part of the Legal Professionals library, sponsored by Reed Smith
