TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001 PROCEDURES AND STANDARDS
SECTION 1001.100 CONDUCT OF FORMAL HEARINGS
Section 1001.100 Conduct of Formal Hearings
a) Location; Open to Public; Out-of-state Petitioners. All hearings conducted in any proceeding shall be open to the public. Pursuant to statute, formal hearings may be conducted in Springfield, Chicago, Joliet, Mt. Vernon, or such other locations as agreed upon by the Secretary and the petitioner/respondent.
1) In petitions for driving relief, petitioners who have permanently relocated outside of the State of Illinois and petitioners who are still residents but are temporarily residing outside the State of Illinois may make, except as provided in subsection (a)(2), written application in lieu of returning to Illinois for a formal hearing. These petitioners shall be deemed to have waived the right to appear in person. Out-of-state petitioners must initially submit the filing fee authorized by Section 2-118 of the Illinois Vehicle Code and Section 1001.70(b)(1) of this Subpart A, and evidence of their residency, such as, but not limited to, voter's registration, income tax returns, apartment rental leases, mortgage contracts, employment verification, utility and/or telephone bills, etc. The Department reserves the discretion to reject out-of-state petitions that fail to provide this evidence or establish residency. The Department also reserves the discretion to reject an out-of-state petition if there is evidence that the petitioner is regularly present in the State of Illinois, such as through work, school, or family contacts, but not limited thereto, and is capable of attending a hearing in person in a timely manner.
2) Out-of-state petitioners who reside within 30 miles of the Illinois border shall be required to attend a hearing in person, unless the petitioner shows good cause for not being able to attend in person. Good cause is shown when it is demonstrated by a written statement that the petitioner cannot attend a formal hearing in person due to economic, physical, or medical reasons. Mere inconvenience does not constitute good cause.
3) Except as provided in Sections 1001.430(k) and 1001.440(o), out-of-state petitioners must submit at a minimum all documentation and information required by Subpart D of this Part, as well as a sworn Out-Of-State Petitioner's Affidavit, that provides the information otherwise required by the Secretary, at a formal hearing.
4) A petition for an out-of-state formal hearing is regarded as being filed when the Department accepts, as fully completed, the documentation required by subsection (a)(3). The Department will inform the petitioner of this fact by a dated letter posted in the regular mail. Pursuant to Section 2-118 of the Code, the petitioner's file will be assigned to a hearing officer within 90 calendar days from the date of filing. A final Order will be entered no more than 90 days after it is assigned to a hearing officer.
b) Parties to a Hearing; Disqualification of Hearing Officer. Every hearing shall be presided over by a hearing officer duly appointed by the Secretary. The Secretary may also appoint a representative to appear and participate in the hearing on his/her behalf. Prior to the taking of evidence, the petitioner/respondent may request disqualification of the hearing officer by making a motion for disqualification on the record, stating the specific grounds upon which it is alleged that a fair and impartial hearing cannot be afforded the petitioner/respondent by the hearing officer. The hearing officer will rule upon the motion. If the motion is denied, the hearing will proceed, or the petitioner may withdraw from the hearing. If the motion is granted, the case shall be transferred to another hearing officer for a hearing on the same day if possible. If it is not possible to schedule a hearing on the same day, a new hearing date shall be scheduled and another hearing officer shall be assigned by the Secretary. The hearing officer shall have authority to conduct the hearing, to rule on all motions, to administer oaths, to subpoena witnesses or documents at the request of any party, to examine witnesses, and to rule upon the admissibility of testimony and evidence.
c) Depositions and Interrogatories. Upon order of the hearing officer, for good cause shown, and upon reasonable notice to other parties, any party, including the Department, may cause, at his/her or its expense, a deposition of any witness to be taken for use as evidence in a contested case (for example, when the witness is not available due to distance, time, cost to the party using the testimony, sickness, infirmity, imprisonment, the witness being out of state or similar factors). The deposition shall be taken in the manner provided by law for evidence depositions in civil actions in the Circuit Courts of Illinois. Any party may direct written interrogatories to any other party. Interrogatories must be restricted to the subject matter of the case, to avoid undue detail, and to avoid the imposition of any unnecessary burden or expense on the answering party. Written interrogatories shall be served on the opposing party no later than 15 business days before the hearing. Objection to answers or refusals to answer shall be heard on motion at the hearing before the hearing officer, who shall rule on the objection or refusal. Answers shall be sworn. If an answer to an interrogatory may be obtained from documents in the possession or control of the party on whom the interrogatories were served, it shall be a sufficient answer to specify the documents and make them available to the inquiring party to inspect and copy at the asking party's expense.
d) Rules of Evidence.
1) The technical rules of evidence shall not apply. Any relevant evidence may be admitted if it is the sort of evidence relied upon by reasonably prudent people in the conduct of their affairs. The existence of any common law or statutory exclusionary rule that might make improper the admission of the evidence over objections in civil or criminal actions shall not be a bar to the admissibility of otherwise relevant evidence. The rules of privilege shall be followed to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant, immaterial or unduly repetitious evidence may be excluded upon objection. Objections to evidentiary offers may be made and shall be noted in the record, and ruled upon by the hearing officer. Any party may make an offer of proof following an adverse evidentiary ruling. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form. Subject to the evidentiary requirements of this subsection, a party may conduct cross-examination required for a full and fair disclosure of the facts.
2) In regard to implied consent hearings over which the Secretary of State has jurisdiction, the hearing may be conducted upon a review of the official police reports. However, the parties may subpoena the arresting officer and any other officer who was involved in the petitioner's arrest or processing after arrest, as well as any other person whose testimony may be probative to the issues at the hearing. The failure of an officer to answer the subpoena shall be considered grounds for a continuance if, in the hearing officer's discretion, the continuance is appropriate. Furthermore, the failure of the arresting officer to answer a subpoena shall not be considered grounds for the rescission of an implied consent suspension. Rather, the hearing shall proceed on the basis of the other evidence available and the hearing officer will assign this evidence whatever probative value he or she deems appropriate.
e) Official Notice. Official notice may be taken of past hearings and any matter of which the Circuit Courts of Illinois may take judicial notice. In addition, official notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including staff memoranda and data, and they shall be afforded an opportunity to contest the material so noticed. The Department's and the hearing officer's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.
f) Pre-hearing Conference. At the request of any party or upon his own motion, the hearing officer may call a prehearing conference. At the conference, the parties or their representatives shall appear as the hearing officer directs. Matters that may be considered at a prehearing conference include, but are not limited to:
1) The simplification of the issues;
2) Amendments to the grounds for action;
3) The possibility of obtaining admissions and stipulations of fact and of documents that will avoid unnecessary proof;
4) The limitation of the number of expert witnesses;
5) Any other matters which may aid in the disposition of the contested case.
g) Order from Pre-hearing Conference. Upon the conclusion of a prehearing conference, the hearing officer shall enter an order that recites any action taken, any agreements made by the parties as to any of the matters considered, and the issue to be heard.
h) List of Witnesses; Bill of Particulars. Upon written request, made at least 10 business days prior to the hearing, a party shall furnish to other parties a list of the names and addresses of prospective witnesses, or furnish written answers to a written demand for a bill of particulars.
i) Inspection of Documents; Interview of Parties. Any party or his representative shall have the right, upon written motion made at least 10 business days prior to the hearing, to inspect any relevant documents in the possession of or under the control of any other party and to interview parties or persons having knowledge of relevant facts, subject to any statutory or constitutional privileges. Interviews of persons and inspection of documents shall be at times and places reasonable for the persons and for the custodian of the document.
j) Oath. Testimony shall be taken only on oath or affirmation.
k) Stipulations. Parties may agree by stipulation upon any facts involved in the hearing. The facts stipulated shall be considered as evidence in the hearing.
l) Right to Subpoena. Each party shall have the right to request the subpoena of and to call and to examine witnesses, to introduce exhibits, and to cross-examine witnesses on any matter relevant to the issues, even though that matter was not covered in the direct examination. Applications to the hearing officer assigned to the case for subpoenas duces tecum shall specify the books, papers, and documents desired to be produced.
m) Rights of Parties. Each party shall have the right to rebut the evidence against him; to appear in person; and to be represented by counsel. If a party does not testify in his/her own behalf, he or she may be called by the Secretary of State's representative and examined as if under cross-examination.
n) Motions to Continue and Withdraw
1) Grounds. Hearings before the Department of Administrative Hearings will be continued only pursuant to a motion: filed prior to or on the date of the hearing, made over the telephone less than 15 days prior to or on the date of the hearing, or in person on the day of the hearing. The movant shall set forth the grounds for the motion, which are limited to unforeseen, unavoidable or uncontrollable circumstances, such as an Act of God, the recent discovery of new evidence, the sudden illness or death of the movant or a member of his/her immediate family, or of the movant's legal counsel, or if the movant is able to demonstrate some other real and compelling need for additional time. A Motion to Continue may be supported by evidence which tends to prove the grounds alleged, including sworn testimony taken at a motion hearing on the day of the hearing. The inability to obtain transportation to the hearing site or a party's failure or inability to obtain the documentation required to fulfill the minimum requirements to be issued driving relief are not circumstances that will justify continuing a hearing.
2) Must be Continued to a Date Certain. A formal hearing shall not be continued "generally". A continuance, if granted, shall state a date certain upon which the hearing shall reconvene. If the petitioner is not prepared to go forward after the first continuance, a request to withdraw should be submitted.
A) Motions to Continue which are filed at least 15 days prior to the date of the hearing specified in the Notice of Hearing or Notice of a continued hearing date will be given priority in re-scheduling over those motions filed or made less than 15 days prior to the date of the hearing or made on the day of the hearing. The Department will rule upon Motions to Continue filed at least 15 days prior to the date of the hearing and, when possible, notify the movant of its ruling prior to the date of the hearing. If the motion is denied, then the movant must appear at and proceed with the hearing or withdraw from the hearing.
B) Motions to Continue which are made in person on the day of the hearing or by telephone less than 15 days prior to the date of the hearing specified in the Notice of Hearing or Notice of a continued hearing date must also be filed in writing and received or postmarked no more than 5 days after the date of the hearing. A Motion to Continue made in writing less than 15 days prior to the date of the hearing specified in the Notice of Hearing or Notice of a continued hearing date must be received or postmarked no more than 5 days after the date of the hearing. The Department cannot assure the movant that it will rule upon such motions prior to the date of the hearing.
C) A Motion to Continue made or filed by a petitioner waives the statutory requirement of Sections 2-118 and 3-402.B(7)(a) of the Code that his/her hearing commence within 90 days from the date of his/her written request.
D) It is the responsibility of the movant to inform the Department, in the Motion to Continue or during his/her telephone conversation, what course of action he/she wishes to take if the motion is denied (either to appear and proceed with the hearing, withdraw or default). In all cases, it is also the responsibility of a movant who has not been notified of the Department's ruling to contact the Department on or before the day of the hearing to determine whether his/her motion has been ruled upon. A movant's failure to appear after a Motion to Continue is denied will result in the entry of an Order of Default.
3) Motions Made by the Department. The Department may also make or file a Motion to Continue for unforeseen, unavoidable or uncontrollable circumstances, such as an Act of God, the recent discovery of new evidence, the sudden illness or death of the hearing officer, the attorney representing the Secretary of State, a witness, or a member of the immediate family of the same, or if the Department is able to demonstrate some other real and compelling need for additional time.
4) Motions to Withdraw. Except as provided in this subsection (n)(4) and in Section 1001.70, a petitioner may withdraw from a hearing for any reason. A Motion to Withdraw made in person or by telephone on or before the day of the hearing must be followed up with a written motion that is received or postmarked no more than 5 days after the date of the hearing. A Motion to Withdraw made in writing must be received or postmarked no more than 5 days after the date of the hearing. Failure to do so will result in an Order of Default. A request to withdraw from a hearing, which in the hearing officer's judgment is based upon surprise of evidence presented or adverse evidence, shall not be granted. Upon withdrawal, the requested relief will not be considered and the petition dismissed. Should the petitioner request another hearing, it must be done in writing and it will be treated as any other request for hearing. (See Section 1001.70.)
5) Attorney's Appearance Must be on File. A Motion to Continue or Withdraw made by any attorney on behalf of a petitioner/respondent will not be considered unless the attorney shall have filed a written notice of appearance as provided in Section 1001.40.
6) Out-of-State Petitioners. An out-of-state petitioner who fails to provide the information required by Sections 1001.100(a)(3) and 1001.440(o) within 30 days after a written demand made by the Department to his/her last known address shall have his/her petition withdrawn by a written Order of the Director or Deputy Director. The Order shall be made part of the petitioner's permanent record and a copy shall be sent to the petitioner's last known address. The Department shall not accept another petition for driving relief from a petitioner whose petition for driving relief has been withdrawn pursuant to this provision for 30 calendar days from the date of the Order.
o) Admissions. A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request or for the admission of genuineness of any relevant documents described in the request. Copies of the documents shall be served with the request unless copies have already been furnished.
p) Opening and Closing Statements. Upon the opening of the hearing, the hearing officer shall allow the parties to make opening statements. Opening statements may not be made at any other time, except at the discretion of the hearing officer. Upon the close of the hearing each party may make a closing statement orally and/or by written brief at the discretion of the hearing officer, incorporating arguments of fact and law. A written brief may be required when the facts and issues are deemed complicated by the hearing officer and there is a need for the parties to plead their cases in writing for the record.
q) Exhibits. All exhibits for any party shall be clearly marked for identification and as admitted into evidence by the hearing officer.
r) Cross-examination of Witnesses. In the hearing of any case, any party or his agent may be called, as an adverse witness and examined as if under cross-examination, by any party. The adverse party calling for the examination is not bound by the testimony of the adverse witness, but may rebut the testimony given and may impeach the witness by proof of prior inconsistent statements. If the hearing officer determines that a witness is hostile or unwilling, the witness may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness may, upon showing that he called the witness in good faith but is surprised by his testimony, impeach the witness by proof of prior inconsistent statements.
s) Burden of Proof. The burden of proof is upon the petitioner for any relief in a hearing. The standard of proof is the preponderance of the evidence, except as provided for in Subpart D.
t) Interpreters; Hearing Impaired. The Secretary will provide an interpreter for hearing impaired petitioners/respondents who wish to testify; providing a language interpreter, however, is the responsibility of the petitioner/respondent.
u) Report of Proceedings
1) The Department shall, at its expense, have present at each hearing an electronic recording device or a qualified court reporter, for the purpose of making a permanent and complete report of the proceedings, including: evidence admitted or tendered and not admitted, testimony, offer of proof, objections, remarks of the hearing officer and of the parties and/or their representatives, all rulings of the hearing officer.
2) Upon request and at his/her own expense any party may have a copy of the report of proceedings, from the court reporter, or transcribed from the electronic device by the Department at the statutory rate set forth in Section 5.5 of the Secretary of State Act [15 ILCS 305/5.5] and 2 Ill. Adm. Code 551.150, or the cost of an audio tape plus mailing.
(Source: Amended at 31 Ill. Reg. 6185, effective May 1, 2007)