TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.10 APPLICABILITY
Section 1001.10
Applicability
This Subpart shall apply to all
formal hearings conducted pursuant to the Illinois Vehicle Code under the
jurisdiction of the Office by the Department, except for hearings conducted
pursuant to Chapter 7 of the Illinois Vehicle Code [625 ILCS 5/Ch. 7].
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.20 DEFINITIONS
Section 1001.20 Definitions
"Code" means the Illinois Vehicle Code [625 ILCS
5].
"Contested case" means any adjudicatory proceeding
conducted by the Office in which the legal rights, privileges, immunities,
duties, or obligations of any person or party are required by law or regulation
to be determined by the Secretary of State after an opportunity for a hearing.
"Continue a hearing" means to re-schedule a hearing
to another date certain.
"Department" means the Department of Administrative
Hearings of the Office of the Secretary of State of Illinois.
"Director" means the Director or Acting Director of
the Department.
"Formal Hearing" means any hearing authorized to be
held in the Department by the Illinois Motor Vehicle Code or any and all other
applicable statutes at any time in force in the State of Illinois.
"Hearing Officer" means any person designated by
the Secretary of State to preside at any hearing conducted pursuant to this
Subpart.
"Office" refers to the Office of the Secretary of
State and not to any particular Department, address, or location.
"Order of Default" means an Order entered by the
Department which denies all relief because a petitioner fails to appear for a
hearing at the time, date and place specified in the Notice of Hearing or
Notice of a continued hearing date without prior notification to the Department
of his/her inability to appear.
"Party" means any person named or admitted as a
participant in any hearing conducted pursuant to this Subpart, including the
Office and Department.
"Person" includes any individual, corporation,
partnership, association, or firm legally capable of either seeking the action
of the Office or being the subject of the action.
"Petitioner" is the party who by written request
seeks or applies for any relief from the Office under the provisions of the
Illinois Vehicle Code, or otherwise from any rule, regulation, order, or
determination of the Office.
"Respondent" means a person against whom a
complaint or petition is filed, or who, by reason of interest in the subject
matter of a petition or application or the relief sought therein, is made a
respondent or to whom an order or complaint is directed by the Department
initiating a proceeding.
"Secretary" means the Illinois Secretary of State.
"Withdraw from a hearing" means to terminate a
hearing upon the motion or at the request of the petitioner.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.30 RIGHT TO COUNSEL
Section 1001.30 Right to
Counsel
a) Attorneys Must be Licensed; 711 Students. Any party may
appear and be heard through an attorney at law licensed to practice in the
State of Illinois, or any law student licensed under Supreme Court Rule 711, in
any hearing in any matter involving the exercise of legal skill or knowledge. (S.
Ct. Rule 711)
b) Pro Hac Vice. Attorneys admitted to practice in states other
than the State of Illinois may appear and be heard in a specific hearing, upon
the attorney's verbal representations or written documentation as to the
attorney's admittance, by special leave of the Director of the Department or
the Director's designee, pursuant to an Order pro hac vice, as authorized by
Supreme Court Rule 707 and the Illinois Rules of Professional Conduct Rule 5.5,
effective January 1, 2010.
c) Pro Se. A natural person may appear and be heard on his or
her own behalf.
d) Corporations, Limited Liability Companies, and Partnerships. A
corporation, association, limited liability company or partnership must appear
by legal counsel, licensed to practice in the State of Illinois or appearing
pro hac vice.
e) The standard of conduct shall be the same as before the Courts
of Illinois.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.40 APPEARANCE OF ATTORNEY
Section 1001.40 Appearance
of Attorney
An attorney appearing in a
representative capacity shall file a written notice of appearance with the
Department of Administrative Hearings office where the formal hearing is
requested or pending, identifying himself or herself by name, address, electronic
mail address, website, facsimile number, telephone number, and Supreme Court
registration number, and identifying the party represented.
(Source: Amended at 40 Ill. Reg. 834, effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.50 SPECIAL APPEARANCE
Section 1001.50 Special
Appearance
Prior to filing any other
pleading or motion, a special appearance may be made either in person or by an
attorney for the limited purpose of objecting to jurisdiction. Every
appearance not expressly designated a special appearance shall be deemed to be a
general appearance. If the reasons for objecting to jurisdiction are not
apparent from the papers on file in the proceeding, the special appearance
shall be supported by affidavit setting forth the reasons. In ruling upon any
objection at any hearing, the hearing officer may consider all matters apparent
from the papers on file, affidavits submitted by any party, and any other
evidence adduced upon disputed issues of fact. No determination of any issue
of fact in connection with the objection is a determination of the merits of
the case or any aspect thereof. A ruling adverse to the movant does not
preclude the making of any motion or defense which might otherwise have been
made. If the hearing officer sustains the objection, an appropriate ruling shall
be entered of record. Error in ruling against the objection is not waived by
the objector's taking part in further proceedings in the matter.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.60 SUBSTITUTION OF PARTIES
Section 1001.60 Substitution
of Parties
A hearing officer shall, upon
motion, when proper in cases in which a party has died, resigned, been moved or
otherwise succeeded to the interest of a previously named party rule on a
request for the substitution of parties.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.70 COMMENCEMENT OF ACTIONS; NOTICE OF HEARING
Section 1001.70 Commencement
of Actions; Notice of Hearing
a) Petition;
Notice of Hearing
1) A
contested case is commenced by the Office, either after the written request of
the petitioner or on the Office's initiative, by service of a Notice of Hearing
in accordance with Section 2-114, within the time limitation contained in
Sections 2-118(a) and (b) and 3-402.B(7)(a) and (b), as applicable, of the
Illinois Vehicle Code [625 ILCS 5/2-114, 2-218(a) and (b), and 3-402.B(7)(a)
and (b)] upon the respondent. By "written request" it is meant that
the petitioner may send the Office a petition via facsimile, electronic
transmission, or regular mail. The Notice of Hearing may be sent by electronic
transmission, if the petitioner agrees to receiving the Notice of Hearing and
Decision and/or Order via electronic transmission.
2) Any
petition for reinstatement of driving privileges will also be considered a
petition for a restricted driving permit, unless the petitioner specifically
waives any consideration for alternative relief.
b) Filing Fee
1) A petition for a hearing will not be accepted for filing unless
it is accompanied by a fee of $50, as provided in Sections 2-118 and 3‑402.B(7)(a)
of the Illinois Vehicle Code. This filing fee must be submitted in the form of
a money order, a check, or a credit card charge (with a pre-approved card),
made payable to the Secretary of State.
2) This filing fee will not be refunded to the party requesting a
hearing if the hearing proceeds, the party submits multiple petitions for a
hearing to different hearing locations simultaneously, the party withdraws from
the hearing or an order of default is entered. The party will be required to
submit another filing fee before another hearing will be scheduled.
3) In cases where a hearing is continued, the party requesting
the hearing will not be required to submit another filing fee.
4) In cases where the party requesting a hearing withdraws or
defaults, the party will be required to submit another filing fee before
another hearing will be scheduled.
c) The Notice of Hearing shall include:
1) The names and addresses of all known parties, petitioner and
respondent, including the department initiating the hearing;
2) Whether the hearing is at the request of the petitioner or the
Department;
3) The time, date and place of hearing. The Department will
endeavor to accommodate a party's request regarding the location of a hearing,
but reserves the discretion to schedule a hearing at a site that is mutually
convenient for all parties involved, including witnesses, and subject to the
constraints imposed by budgetary and personnel considerations;
4) A short and concise statement of facts (as distinguished from
conclusions of law or a mere recitation in the words of the statute) alleging
the act or acts done by each petitioner or, where appropriate, respondent; the
time, date, and place each such act was done or a short and concise statement
of the matters asserted; and the rule, statute, or constitutional provision, if
any, alleged to have been violated, or otherwise involved in the proceeding;
and the relief sought by the petitioner party;
5) A statement to each party that:
A) Such party may be represented by legal counsel; may present
evidence; may cross-examine witnesses and otherwise participate in the hearing.
B) Failure to so appear shall constitute a default, unless such
party has, upon due notice to other parties, moved for and obtained a
continuance from the hearing officer.
C) Delivery of notice to the designated representative of a party
constitutes service upon the party.
d) Requirements
for Felony Convictions Involving a Fatality. A petitioner who has an open
revocation for reckless homicide or aggravated driving under the influence that
involved a fatality must submit, with his or her petition for driving relief,
either a copy of the Order of the circuit court that states the sentence
received upon conviction, certified by the Clerk of the Court, or a document
from the Department of Corrections that reflects: the offense for which the
petitioner was imprisoned; the date of release from imprisonment; and the terms
of release or parole. For the purpose of determining a petitioner's
eligibility for reinstatement pursuant to Section 6-208(b)1 of the Code, and
for the issuance of a restricted driving permit pursuant to Sections 6-205(c)
and 6-206(c)3 of the Code, the date of release from imprisonment refers to the
imprisonment on the conviction for the offense and does not include release
from imprisonment for a violation of parole or probation. It is the
responsibility of the petitioner to provide documentation that clearly reflects
the date of his/her release from imprisonment.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.80 MOTIONS
Section 1001.80 Motions
a) Form of Motions. All motions
shall be made in writing and shall set forth the relief or order sought and
shall be filed with the Department at the earliest time to be considered by the
hearing officer. Motions may be hand delivered or sent by regular mail, by
courier, or by facsimile transmission, must be sent to the hearing location
designated in the notice of hearing, and are considered received on the date
that they are file-stamped by Department personnel. Motions based on matter that
does not appear of record shall be supported by affidavit. Motions may be
presented by a party to obtain appropriate relief, such as to dismiss the
proceedings, to add necessary parties, or to extend time for compliance of an
order.
b) Motions to Correct or Reconsider. The
Department will not consider motions to correct a
material misstatement of fact or to reconsider a decision made or Order
entered in a formal hearing. The proper avenue of relief is to file a
complaint under the Administrative Review Law. The
petitioner may also file another petition for driving relief pursuant to
Section 1001.450.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.90 FORM OF PAPERS - ORIGINAL DOCUMENTS REQUIRED
Section 1001.90 Form of
Papers − Original Documents Required
a) Form of Papers. All papers filed in any proceeding shall be
clearly written or typewritten. They shall contain a caption showing the title
of the proceeding with a case number. All papers must be signed or verified by
the party filing the papers or his/her authorized representative or attorney,
and shall contain his or her address, telephone number, website and electronic
mail address, if available. An original and one copy shall be filed by each
party, except as provided in subsection (b).
b) Original
Documents Required. In regard to documents that are submitted pursuant to the
requirements of Subpart D and that have not been previously submitted to the
Department, the Department will accept, or admit into evidence, only the
original document, except as specified in this subsection. By original
document is meant a document that bears the original signature of the
petitioner and/or author of the document, as applicable.
1) Uniform Reports; Original Required. The
requirement of the submission of an original document that must also be
submitted to a court of venue can be met in one of two ways:
A) Service
providers can print multiple "originals", all of which are signed and
dated by the provider and the petitioner; or
B) The
provider can make a photocopy of the original and the provider and petitioner
can sign and date (or re-sign and re-date a second time) both the original and
the copy.
2) Update Evaluations; Original Required. The
first time that an update evaluation is submitted to the Secretary of State, it
must be submitted as an original document. See Sections 1001.410 and .440(a)(6).
At subsequent submissions of the same document, such as when renewing a
restricted driving permit at an informal hearing, the petitioner may submit a
copy of the update evaluation.
3) Treatment Verification; Original Required. The
rules of the Secretary of State require petitioners to submit proof of the
successful completion of alcohol or drug related treatment in a "narrative
summary" or a similar report that shall provide the information listed at Section
1001.440(m)(1). The Department has composed, published, and distributed a "Treatment
Verification Form", which it prefers and strongly encourages that
treatment providers use and replicate for this purpose. The first time that
this document, or a narrative summary composed on a treatment provider's
letterhead, is submitted, it must be submitted to the Secretary of State as an
original.
A) As
specified in Section 1001.440(m)(2), the Department will accept a copy of the
petitioner's Individualized Treatment Plan and Discharge Summary.
B) As specified in Section 1001.440(m)(3), the
Department will accept a copy of the Continuing Care Plan. The other
Continuing Care documents that must be submitted to the Secretary of State
(periodic status reports and the final summary report, or the waiver of
continuing care) must be submitted as originals, on the provider's letterhead stationery.
4) Driver Risk
Education; Original Not Required. The Department will accept a copy of the
form used by service providers to record and verify successful completion of a
Driver Risk Education course. See Section 1001.440(a).
5) Exceptions;
Verification Form Allowed. Exceptions to the requirement that the original
document be submitted will be considered only if the petitioner is able to
demonstrate that the original document is no longer available from the agency
that composed the document. In these cases, the petitioner must submit a
"Verification Form" that the Department has composed, published and
distributed to service providers. On the Verification form the service
provider shall verify that the copy of the document is a true and
correct/identical copy of the original or of the document that was received
from another agency and is contained in its file, and/or inform the Secretary
of State of the reason that the original of a document is not available.
6) Other Documents; Original Preferred. All
other documents that are composed or created solely for the purpose of being
submitted to the Secretary of State at a formal or informal hearing should be
submitted as originals. (For example: the Secretary of State medical report
forms; reports/evaluations from psychiatrists, clinical psychologists, or other
counselors; letters from probation officers or physicians; letters of
reference; verification of employment.
7) Documents
Sent by Facsimile or Electronic Transmission. Documents recited in this
Section that must be submitted as an original but are, instead, sent by
facsimile or electronic transmission will be accepted at the time of the
hearing; however, the originals of the documents must be submitted at a later
date. Leave to submit the originals will be granted within no more than
14 calendar days after the hearing. The presiding hearing officer will
determine the specific number of days within which the petitioner is allowed to
submit the original, based upon the circumstances of each individual case.
8) The failure of the petitioner to submit an original document as
required in this Section shall not, in and of itself, constitute, under any
circumstance, the sole basis of denying driving relief.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
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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) Open
to Public. All hearings conducted in any proceeding shall be open to the
public.
b) Out-of-state
Petitioners. An out-of-state petitioner is defined as a petitioner who never
resided in Illinois, or who has permanently relocated outside of the State of
Illinois. An out-of-state petitioner may choose to submit an "out-of-state
application" in petitioning for driving relief, in lieu of appearing at an
in-person hearing. These petitioners shall be deemed to have waived the right
to appear at an in-person hearing. However, no person subject to a life-time
prohibition from making an application for a driver's license under Section
6-208(b)4 of the Code may submit an out-of-state application and must appear at
a formal in-person hearing, regardless of the nature of the current loss of
driving privileges, unless the hearing officer determines that there are
material extenuating circumstances that prohibit the petitioner from attending
an in-person hearing. Material extenuating circumstances do not include
inconvenience or monetary considerations. In-person hearings require the
petitioner to be physically present and do not include telephonic hearings but
do include real-time audio and visual internet hearings.
1) Out-of-state
petitioners must provide evidence of their residency, such as, but not limited
to, voter 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 out-of-state petitions if there is evidence that the
petitioner is regularly present in the State of Illinois, for such reasons as,
but not limited to, through work, school or family contacts and is capable of
attending a hearing in person in a timely manner. An out‑of‑state
petitioner who chooses to appear in person must either testify to, or provide
documentation of, the location of the petitioner's current residency. An
out-of-state petitioner who has not completed the requirements for
reinstatement as a BAIID Multiple Offender (BMO) permittee or is currently a
Lifetime permittee (see Section 1001.410) in Illinois must also submit a valid state-issued identification card or
driver's license prior to being granted reinstatement.
2) The out-of-state petitioner must submit, at a minimum, all
documentation and information required by Subpart D if they appear at an
in-person hearing. The uniform report alcohol and drug evaluation at an
in-person hearing must have been conducted in-person or virtually, by an
Illinois provider licensed by the Illinois Department of Human Services,
Division of Substance Use Prevention and Recovery (DSUPR) to conduct these
evaluations. All other documentation, including treatment and intervention
documentation, required by Subpart D can be completed in person by an
out-of-state licensed provider on forms downloaded from the Department of
Administrative Hearings web page and must comply with this Part and the
regulations set by DSUPR. Remedial education may be performed in-person or
virtually but must comply with this Part and the regulations set by DSUPR.
However, no documents in Subpart D are required to be submitted if the
petitioner submits a written out-of-state application for driving relief, as
the out-of-state application for driving relief encompasses all documentation
required by Subpart D.
3) An informal hearing request is made when the Department
accepts a written out-of-state application. The petitioner's application will
be assigned to a hearing officer within 10 calendar days after receipt of a
complete application. The application will be reviewed by the hearing officer
and a letter decision will be issued no more than 180 days after it is assigned
to a hearing officer.
c) Formal Hearings Generally; Parties to a Hearing;
Disqualification of Hearing Officer. Every hearing shall be presided over by a
hearing officer duly appointed 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. The Secretary may also appoint a representative to appear and
participate in the hearing on the Secretary's 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.
d) Depositions and Interrogatories
1) Upon order of the hearing officer, for good cause shown, and
upon reasonable notice to other parties, any party, including the Department,
may take, at that party's expense, the testimony of any party or person by
deposition upon oral examination or written questions for the purpose of
discovery or for use as evidence in the action 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 notice, order or stipulation to take a
deposition shall specify whether the deposition is to be a discovery deposition
or an evidence deposition. In the absence of specification, a deposition is a
discovery deposition only. If both discovery and evidence depositions are
desired of the same witness, they shall be taken separately, unless the parties
stipulate otherwise or the hearing officer orders otherwise upon notice and
motion. The deposition shall be taken in the manner provided by law for discovery
and evidence depositions in civil actions in the Circuit Courts of Illinois.
2) 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. Sworn answers or objections to interrogatories
directed to the Department and/or Secretary of State may be made by a designated
agent, including the Department's counsel, who shall furnish such information
as is available. 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. The
requirements of this subsection (d)(2) do not apply to objections or refusals
to answer interrogatories.
e) 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 the hearing officer deems
appropriate.
f) 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.
g) Inspection
of Documents; Interview of Parties. Any party or that party's representative
shall have a right, upon the filing of a written motion with proper proof of
service, to inspect any relevant document in the possession of or under the
control of any other party prior to the formal hearing. The inspection of
documents shall occur at the location the formal hearing is scheduled. Any
party may file a written motion seeking to interview parties or persons having
knowledge of relevant facts, subject to any statutory or constitutional
privileges. Upon order of the hearing officer, for good cause shown, and upon
reasonable notice to other parties, any party, including the Department, may
interview, at that party's expense, parties or persons having knowledge of
relevant facts. Interviews of persons and inspection of documents shall be at
times and places reasonable for the persons and for the custodian of the
document.
h) 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.
i) Right
to Call Witnesses, Cross-Examine, Subpoena Documents and Introduce Exhibits.
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.
j) Pre-hearing
Conference. At the request of any party or upon the hearing officer's own
motion, the hearing officer may call a pre-hearing conference. At the
conference, the parties or their representatives shall appear as the hearing
officer directs. Matters that may be considered at a pre-hearing 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; and
5) Any
other matters that may aid in the disposition of the contested case.
k) Order
from Pre-hearing Conference. Upon the conclusion of a pre-hearing 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.
l) Oath. Testimony shall be taken only on oath or affirmation.
m) Stipulations.
Parties may agree by stipulation upon any facts involved in the hearing. The
facts stipulated shall be considered as evidence in the hearing.
n) Official
Notice. Official notice may be taken of past hearings and of 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.
o) Rights of Parties. Each party shall have the right to rebut
the evidence against it; to appear in person; and to be represented by
counsel. If a party does not testify on its own behalf, the party may be
called by the Secretary of State's representative and examined as if under
cross-examination.
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 that party's 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 the witness as if under cross-examination. The party calling an
occurrence witness may, upon showing that the party called the witness in good
faith but is surprised by the testimony, impeach the witness by proof of prior
inconsistent statements.
s) Burden
of Proof; General and Exception. The general 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, where the
burden of proof is upon the petitioner to prove each issue or element of proof
by clear and convincing evidence.
t) Interpreters; Hearing Impaired. The Secretary will provide,
upon prior written request, 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; Obtaining a Copy of Record
1) The Department shall, at its expense, have present at each formal
hearing an electronic or digital 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 written request and at the party's own expense, any party
may obtain a copy of the report of proceedings from the court reporter or
copied from the electronic device by the Department. The party must pay $25 to
the Secretary of State, in advance, to cover the cost of making an electronic
or digital copy and mailing.
v) Motions to Continue and
Withdraw; Leave to Submit Original Documents
1) Motions
to Continue by Petitioner or Respondent; Grounds. Hearings before the
Department of Administrative Hearings will be continued only pursuant to a
motion that complies with the requirements of Section 1001.80 and is:
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 made 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, an immediate family member, or 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 that 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 may be
circumstances that will justify continuing a hearing upon showing of good cause
by the petitioner.
2) 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 or an Order of Default shall be entered.
A) Written
Motions to Continue 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 rescheduling 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, the movant must appear at
and proceed with the hearing or withdraw from the hearing or an Order of
Default shall be entered.
B) Motions
to Continue made 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 to be considered. 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 and
postmarked no more than 5 days after the date of the hearing. The Department
cannot assure the movant that it will rule upon these 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 the hearing
commence within 90 days from the date of the written request.
D) It is
the responsibility of the movant to inform the Department, in the Motion to
Continue or during the telephone conversation, what course of action the movant
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 the hearing officer
has ruled on the motion. 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 one of these entities, 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 (v)(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 no more than 10 days after
the date of the hearing. A Motion to Withdraw made in writing must be received
or postmarked no more than 10 days after the date of the hearing. Failure to
do so will result in an Order of Default. Once a petitioner is placed under
oath, a request to withdraw from a hearing that, in the hearing officer's
judgment, is based upon surprise 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) Motions
for Leave to Submit Original Document. As provided in Section 1001.90(b)(7)
and (8), the petitioner may request leave to submit original documents if the
petitioner proceeds with the hearing, offering copies of documents when
originals are required. The hearing shall be completed and the petitioner shall
be granted leave to submit the original documents as provided in Section
1001.90(b)(7) and (8).
6) Attorney's
Appearance 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 has
filed a written notice of appearance as provided in Section 1001.40.
(Source: Amended at 45 Ill. Reg. 14985,
effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.110 ORDERS; NOTIFICATION; TIME LIMITS ON OBTAINING RELIEF
Section 1001.110 Orders; Notification; Time Limits on Obtaining Relief
a) The Department shall prepare a written order for all final
determinations, which shall include the Findings of Fact, Conclusions of Law,
Recommendations of the hearing officer, and the Order of the Secretary.
b) The hearing officer shall prepare the Findings of Fact,
Conclusions of Law, and Recommendations to the Secretary. The Findings of Fact
and Conclusions of Law must be stated separately.
c) The Order of the Secretary of State shall be the decision of
the Office upon the application for relief.
d) The
Department shall notify all parties or their agents personally, by facsimile, regular mail or
electronic transmission, of the Findings
of Fact, Conclusions of Law, Recommendations, and the Order within the
statutory time limit specified in Section 2-118 of the Code. If it is the Order of the Secretary of State to grant driving relief, then the Department will also
provide instructions on what steps the petitioner must take (such as, but not
limited to, filing high-risk insurance, the payment of fees, taking driving
tests, etc.) in order to obtain the relief. The failure to follow and complete
these instructions will result in the denial of driving relief.
1) Petitioners
who are granted a restricted driving permit must complete the requirements for
obtaining the permit within 120 days after the date of the Secretary's Order.
The Department reserves the discretion to extend this deadline in order to allow
a petitioner to achieve compliance, when it is apparent that the petitioner is
making a good faith effort or the petitioner demonstrates that the petitioner
has experienced a change in circumstances that requires the provision of
additional information (such as, but not limited to, a change in employment).
2) Petitioners who are granted the
reinstatement of driving privileges must complete the requirements for
effecting reinstatement within 18 months after the date of the Secretary's
Order.
e) An Order of Default shall be entered against the petitioner or
respondent, who fails to appear for a hearing at the scheduled time and has
failed to request or been granted a continuance in accordance with Section
1001.100(v).
f) Orders
resulting from formal hearings are final administrative orders within the
meaning of the Administrative Review Law [735 ILCS 5/Art. III].
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.120 RECORD OF HEARINGS
Section 1001.120 Record of
Hearings
a) The record of the hearing in a contested case shall include:
1) All pleadings (including all pre-hearing and post-hearing
notices and responses thereto, admissions, stipulations of facts, motions, and
rulings thereon);
2) All documentary evidence;
3) A statement of matters officially noticed;
4) A transcript of the proceedings;
5) The Findings of Fact, Conclusions of Law, and Recommendations
of the hearing officer;
6) The Order of the Secretary of State, which shall constitute a
final administrative decision within the provisions of the Illinois
Administrative Review Law, [735 ILCS 5/Art. III].
b) The record shall be certified by the hearing officer or
Director upon any complaint for administrative review. An index of the record,
with each page of the record numbered in sequence, shall be prepared by the Department.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.130 INVALIDITY
Section 1001.130 Invalidity
If any portion of this Subpart
shall be held by a court of competent jurisdiction to be invalid, such holding
shall not affect the remaining portions.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
SUBPART B: ILLINOIS SAFETY RESPONSIBILITY HEARINGS
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.200 APPLICABILITY
Section 1001.200
Applicability
This Subpart shall apply to
administrative hearings conducted by the Secretary of State pursuant to the
provisions of Chapter 7 of the Illinois Vehicle Code, entitled Illinois Safety
Responsibility Law [625 ILCS 5/Ch. 7].
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.210 DEFINITIONS
Section 1001.210 Definitions
"Administrative
hearing" means a proceeding in which the legal rights, duties, and
privileges of a petitioner are determined by the Secretary as required by the
Safety Responsibility Law.
"Code"
or "IVC" means the Illinois Vehicle Code [625 ILCS 5].
"Continue
a hearing" means to re-schedule a hearing to another date certain.
"Department"
means the Department of Transportation, State of Illinois.
"Hearing
officer" means the person appointed by the Secretary to conduct an
administrative hearing held pursuant to this Subpart.
"Interested
party" means an insured person, claimant, or parties suffering property
damages and/or personal injuries who is not the petitioner.
"Order of
Default" means an Order entered by the Department which denies all relief
because a petitioner fails to appear for a hearing at the time, date and place
specified in the Notice of Hearing or Notice of a continued hearing date
without prior notification to the Department of his/her inability to appear.
"Party"
means any petitioner or interested party.
"Person"
means every natural person, firm, co-partnership, association, or corporation.
"Petitioner"
means any person who could be or is being afforded a hearing pursuant to this
Subpart and who is the only party as defined in Sections 7-201 and 7-202 of the
Code, as being subject to the Illinois Safety Responsibility Law.
"Secretary"
means the Secretary of State, State of Illinois, through the Department of
Administrative Hearings.
"Withdraw
from a hearing" means to retract one's petition to contest the preliminary
finding that a reasonable possibility of a civil judgement exists against that
petitioner, upon the motion or at the request of the petitioner.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.220 HEARINGS: NOTICE; LOCATION; PROCEDURES; RECORD
Section 1001.220 Hearings:
Notice; Location; Procedures; Record
a) Notice of Suspension; Right to a Hearing. Any petitioner
who receives a Notice of Suspension in a safety responsibility case may contest
the suspension by submitting a written request for a hearing pursuant to Section
7-205 of the Code. Any request for hearing postmarked within 15 days after the
mailing date of the Notice of Suspension will stay the effective date of the
safety responsibility suspension pending the outcome of the hearing.
Hearing requests received after the 15 day period will be granted; however,
the suspension will not be stayed or removed pending the hearing. "Written
request" means that the petitioner may send the Office a petition via
facsimile, electronic transmission, or regular mail.
b) Filing Fee
1) A petition for a hearing to contest a suspension will not be
accepted for filing unless it is accompanied by a fee of $50, as provided in Section
2‑118 of the Illinois Vehicle Code. This filing fee must be submitted by
each party who wishes to be made a petitioner in the proceeding, in the form of
a money order, a cashier's or certified check, a check drawn on the account of
an attorney of record or an attorney professional corporation of record in a
hearing before the Department of Administrative Hearings, or a credit card
charge (with a pre-approved card), made payable to the Secretary of State.
2) This filing fee will not be refunded to any petitioner if the
petitioner withdraws from the hearing or defaults.
3) In cases where a hearing is continued, any petitioner who has
paid a filing fee will not be required to submit another filing fee.
4) In cases where a petitioner withdraws, the petitioner will be
required to submit a filing fee before another hearing will be scheduled.
c) Decisionmaking Factors; Burden of Proof.
The decision resulting from the hearing shall be based upon the
following factors: whether the petitioner, as a motor vehicle owner or
operator, has been involved, or whose vehicle has been involved, in a motor
vehicle accident occurring within the State of Illinois and which has resulted
in bodily injury or death of any person or in which damage to the property of
any one person exceeds the amount provided by statute; whether petitioner is
exempt from the Safety Responsibility Law; and whether there exists a
reasonable possibility of a civil judgment against the petitioner. The
petitioner shall bear the burden of proof throughout the proceedings. The
standard of proof shall be a preponderance of the evidence.
d) Issuance of Notice of Hearing. The
hearing shall be initiated by the issuance of a Notice of Hearing by the
Secretary. The Notice shall be served upon the petitioner, as the person
against whom action may be taken by the Secretary, any interested party, and
any attorney of record. The Notice of Hearing may be sent by electronic
transmission, if the parties agree to this format.
e) Notice of Hearing − Content.
The Notice of Hearing shall be a written statement setting forth, but not
limited to, the following information:
1) The name of the petitioner;
2) The name and address of any interested party;
3) The date, time, place, and nature of the hearing;
4) The matters to be addressed at the hearing;
5) The specific Sections of the Statutes involved;
6) The statutory authority pursuant to which the hearing is being
conducted;
7) Notice to the petitioner that a failure to appear will result
in the denial of any relief requested and that at any rehearing granted under
Section 1001.260 the petitioner will be deemed to have waived the right to
subpoena or cross-examine witnesses that testified at the original hearing.
f) Location of Hearings; Notice of Change
of Location. Hearings shall be conducted in the Counties of Cook,
DeKalb, Madison, Will, Sangamon, Kane, St. Clair, McDonough, and Jefferson and
in such other locations as the Secretary shall from time to time
designate. The Secretary reserves the discretion to conduct these
hearings by videoconferencing. If the Secretary determines to abandon or
change the location of hearings to a location or locations outside the counties
specifically listed in this subsection, the Secretary shall publish a notice of
the change, at least 20 days prior to the effective date of the change, in a
local newspaper of general circulation in each county wherein a location is
abandoned or to which a hearing location will be added or moved. The
notice shall indicate the reasons for the determination and shall identify the
new location proposed to serve the county, if known at the time of publication.
The hearing site locations, and any change therein, shall also be posted
on the Secretary of State website.
g) 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 his behalf. Prior
to the taking of evidence, a petitioner may request the disqualification of the
hearing officer by making a motion for disqualification, stating the specific
grounds upon which it is alleged that a fair and impartial hearing cannot be
afforded the petitioner by the hearing officer. The hearing officer will rule
upon the motion. If the motion is denied, the hearing will proceed. If the
motion is granted, the case shall be transferred to another hearing officer for
a same day hearing if possible. If not possible, a new hearing date will be
established 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 petitioner, to examine witnesses, and to rule upon the admissibility of
testimony and evidence.
h) Petitioner's Rights. Each
petitioner to the hearing and the Secretary of State shall have the following
rights:
1) The right to the issuance of subpoenas upon written request
directed to the hearing officer at least 10 business days prior to the hearing;
2) The right to call and examine witnesses;
3) The right to cross-examine witnesses on any matter relevant to
the issues, even though the matter was not covered on direct examination;
4) The right to introduce exhibits; and
5) The right to obtain in advance, upon written request, copies
of all related police reports not designated confidential by State law.
Requests must be submitted at least 10 business days prior to the hearing date
to be considered. The petitioners may request copies of the related police
reports at the hearing if the need for the copies could not be foreseen before
the hearing, or the need for them arose because of the issues or allegations
adduced at the hearing.
i) Right to Counsel; Attorneys Must Be
Licensed; 711 Students. The petitioner shall have the right to appear
in person and be heard through an attorney at law licensed to practice in the
State of Illinois or any law student licensed under Supreme Court Rule 711. If
the petitioner does not testify on his/her own behalf, he/she may be called by
the representative of the Secretary and examined as if under cross-examination.
1) Attorneys admitted to practice in states other than the State
of Illinois may appear and be heard in a specific hearing, upon the attorney's
verbal representations or written documentation as to the attorney's
admittance, by special leave of the Director of the Department or the
Director's designee, pursuant to an Order pro hac vice, as authorized by
Supreme Court Rule 707 and the Illinois Rules of Professional Conduct Rule 5.5,
effective January 1, 2010.
2) A natural person may appear and be heard in his/her own
behalf.
3) A corporation, association, or partnership may appear and
present evidence by any bona fide officer, employee, or representative.
4) Only an attorney mentioned above properly licensed shall
represent anyone else in any hearing in any matter involving the exercise of
legal skill or knowledge. The standards of conduct shall be the same as before
the Courts of the State of Illinois.
j) Recording of Proceedings; Obtaining a Copy of the Record.
1) The proceedings shall be recorded by a suitable electronic
method. The petitioner may furnish, at his/her own expense, a certified
shorthand reporter. All records taken shall be properly cataloged and
preserved by the Secretary for a period of at least 45 days from the entry of
the hearing officer's order. A copy of the electronically recorded
proceedings shall be available upon the request of the petitioner, any party,
or his/her counsel upon advance payment of $25 by the requesting party, to
cover the cost of making a copy of the recording plus mailing.
2) Persons who are not a party to a
proceeding may obtain a copy of the file, a document in the file, or a
transcript of the proceeding by filing with the Department a request for the
record pursuant to, and subject to the restrictions and exemptions in, the
Freedom of Information Act [5 ILCS 140].
k) Record of a Hearing. The
record of a hearing held pursuant to this Section shall include, but not be
limited to, the following:
1) The notices, pleadings, and responses to pleadings;
2) The motions and rulings on motions;
3) The matters officially noticed;
4) The offers of proof made and objections to and rulings on
those offers;
5) The opinions, recommendations, or reports by the hearing
officer, Secretary, or Department; and
6) An electronic or digital recording of the proceedings.
l) Interpreters. The Secretary
will provide, upon prior written request, an interpreter for hearing impaired
petitioners and interested parties who wish to testify. However, it is the
responsibility of the petitioner or interested parties to provide a language
interpreter.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.230 RULES OF EVIDENCE
Section 1001.230 Rules of
Evidence
a) The hearing officer shall conduct the hearing, and with
respect to the hearing, shall have, but not be limited to, the following
powers:
1) The authority to administer oaths;
2) The authority to examine witnesses;
3) The authority to issue subpoenas; and
4) The authority to rule upon the admissibility of evidence.
b) The hearing need not be conducted according to strict rules of
evidence. Any relevant evidence may be admitted in a hearing held pursuant
hereto if it is of the type relied upon by reasonable, prudent persons in the
conduct of their affairs, regardless of the existence of any common law or
statutory rule which would render it inadmissible over objection in civil or
criminal actions. The rules pertaining to privileged communications shall be
recognized in these hearings to the same extent as they are recognized in civil
actions. Irrelevant and unduly repetitious evidence shall 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 petitioner 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 petitioner
may conduct cross-examination required for a full and fair disclosure of the
facts.
c) The Secretary may offer into evidence, and the hearing officer
shall receive into evidence, any accident report forms required by Sections
11-406 and 11-410 of the Code and reports in the Secretary's possession
furnished by any law enforcement agency that may have investigated the
accident. The person who made the report need not be present or testify at the
hearing; however, if such person is present his testimony may be taken in
corroboration of or in lieu of the reports. Accident reports may be used in
support of the preliminary finding of the Secretary when used in conjunction
with testimony or other evidence, or when the petitioner refuses to testify.
d) In cases where the operator of a motor vehicle is not the
owner, the establishment of ownership of the motor vehicle creates a rebuttable
presumption that the vehicle was being operated by the agent of the owner. As
such, the owner is liable for the negligence of the agent. Agency may also be
proven by other admissible evidence. The weight given the presumption and
whether it is overcome, or whether agency is proven, are questions of fact for
determination by the hearing officer. This presumption applies equally to
private and commercial vehicles.
e) Upon proper motion, the hearing officer may grant petitioner
leave to submit additional relevant evidence. Leave must be granted for a time
certain in no case to exceed 30 calendar days from the date of the hearing.
Leave to submit additional evidence must be made a matter of record. Leave will
not be granted to submit insurance letters or proof of compliance.
f) The jurisdiction of the Safety Responsibility Hearing applies
to accidents that occur anywhere in Illinois and regardless of when the
accident occurred. (See Sections 7-201 and 11-201 of the Code.)
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.240 SCOPE OF HEARINGS
Section 1001.240 Scope of
Hearings
a) The issues to be determined at the hearing are the following:
1) The identity of the drivers involved in the accident;
2) The identity of the owners of the vehicles involved in the
accident;
3) The nature and extent of the bodily injury or property damage
sustained in the accident;
4) Whether there is a reasonable possibility of either of the
following situations occurring:
A) A judgment being rendered against the petitioner for liability
resulting from bodily injury occasioned by the accident; or
B) A judgment being rendered against the petitioner for liability
in an amount in excess of the statutory minimum as found in Section 7-201 of
the IVC [625 ILCS 5/7-201] resulting from property damage to the property of
any one person occasioned by the accident.
Should it be determined that either of these two factual
situations exists, the preliminary finding of the Secretary shall stand;
5) The existence of any other issue or element necessary to the
establishment of a case, if contested by the petitioner.
b) The law of negligence as determined by the Illinois Supreme
Court and the Illinois General Assembly will apply in the decisions made from
the hearings.
c) If a petitioner requests a hearing and there is evidence of an
installment agreement in the file, the hearing officer shall go on the record
at the time of the scheduled hearing.
1) If the petitioner wishes to contest liability or the amount of
the security deposit required by the Department of Transportation
certification, a full hearing shall be conducted based upon the facts of the
accident and the amount of the damages involved. The validity of the
installment agreement shall not be an issue and the hearing shall proceed as if
no installment agreement exists.
A) If the decision of the hearing officer is to exonerate the
petitioner, the hearing officer shall return the installment agreement to the
petitioner and inform the petitioner that the decision does not alter the
validity of the installment agreement.
B) If the decision of the hearing officer is that the petitioner
did not rebut the preliminary finding of the Secretary, the hearing officer
shall make such a finding, along with a finding regarding the amount of the
security deposit required, as well as a finding that the petitioner is in compliance
by virtue of submission of the installment agreement.
C) A hearing in the case shall be held regardless of whether there
has been a default on the installment agreement.
2) If the petitioner does not wish to contest liability or the
amount of the certification, the hearing officer will go on the record and
state these facts. The installment agreement will be forwarded to the Safety
and Financial Responsibility Division, Driver Services Department, Illinois
Secretary of State, and no action will be taken against the driving and
registration privileges of the petitioner at that time.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.250 DECISIONS AND ORDERS
Section 1001.250 Decisions
and Orders
a) Upon the completion of the presentation of evidence, if the
petitioner is unable to present a preponderance of evidence rebutting the
preliminary finding of the Secretary or otherwise exempting the petitioner from
the purview of the statute, the hearing officer shall direct that an Order of
Suspension be entered. However, if the petitioner rebuts by a preponderance of
the evidence the preliminary finding of the Secretary or otherwise establishes
that the petitioner is exempt from the purview of the statute, the hearing
officer shall direct that an Order of Exoneration be entered and further direct
that the petitioner be dismissed.
b) A copy of the Order entered pursuant to a hearing shall be
served, as soon as practicable after entry of said Order, upon the petitioner
in the same manner as provided in Section 1001.220(d) for the service of the
Notice of Hearings.
c) Decision on Petitioner's Refusal or Non-Appearance
1) If the petitioner fails to appear at the hearing, the hearing
officer shall go on the record, state the petitioner failed to appear and is
held to be in default. However, an attorney, who has filed an appearance on
behalf of the petitioner, may appear and present motions, and the provisions at
Section 1001.220(g) shall be followed. If the attorney, in such a case,
requests a continuance which is denied, the matter shall proceed and an
appropriate order entered.
2) If a petitioner appears for a hearing and refuses to testify
on the grounds that any answer of his/hers may tend to incriminate him/her,
then the hearing officer shall take an adverse inference from the refusal to
testify and shall consider the adverse inference in addition to other evidence
in determining whether petitioner should be suspended or exonerated. If the
petitioner appears and refuses to testify without asserting the right against
self-incrimination, the hearing officer shall enter any appropriate order as is
required by the evidence and this Part.
d) Except for evidence depositions admissible under the law of the
State of Illinois, oral testimony shall be given greater weight by the hearing
officer than a written statement that is unsubstantiated by oral testimony or
other documentary evidence, on the same issue. In determining the weight to be
accorded evidence, the hearing officer shall take into account the demeanor
and/or credibility of the proponent of the evidence. The certification from
the Illinois Department of Transportation regarding the dollar amount of
damages shall be given greater weight than oral testimony that is
unsubstantiated by written corroboration, unless the witness is qualified as an
expert in the field.
e) Continuances and Withdrawals
1) 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 made 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 that 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
petitioner's failure or inability to submit proof of compliance or otherwise
fulfill the minimum requirements of the Illinois Safety Responsibility Law are
not circumstances that will justify continuing a hearing.
2) A hearing shall not be continued "generally". A
continuance, if granted, shall state a date certain upon which time and date
the hearing shall reconvene. If a petitioner is not prepared to go forward
after the first continuance, a request to withdraw should be submitted.
A) Motions to Continue 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 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 § 2-118 of the Code that his/her hearing commence
within 90 days from the date of his/her written request. Except to the extent
provided in subsection (e)(3), these proceedings are considered joint and
non-severable and, therefore, a Motion to Continue made by and granted to any
petitioner is binding on all parties.
D) 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) The Department may also make or file a Motion to Continue for
unforeseen, unavoidable or uncontrollable circumstances, 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) A petitioner may withdraw from a hearing for any reason by
making a motion on the day of the hearing or by filing a Motion to Withdraw at
any time prior to the date and scheduled time of the hearing. Failure to do so
will result in an Order of Default, unless other evidence taken pursuant to
this subsection or § 1001.260 warrants the exoneration of the defaulted party.
If an interested party or another petitioner appears for a hearing prepared to
proceed, his/her testimony or documentary evidence will be taken and made part
of the record, which will be admissible at any rehearing conducted pursuant to §
1001.260. Should the petitioner request another hearing, it must be done in
writing and it will be treated as any other request for hearing. (See §
1001.220(a).)
5) A Motion to Continue or Withdraw made by any attorney on
behalf of a petitioner will not be considered unless the attorney filed a
written notice of appearance as provided in Section 1001.40.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.260 REHEARINGS
Section 1001.260 Rehearings
a) A request by the petitioner for a rehearing will be granted if
good cause is shown. A request for a rehearing must be accompanied by a $50
filing fee, as provided in Section 1001.220(b).
b) Good cause is shown when the petitioner is able to
demonstrate:
1) that a real and compelling reason existed at the time of the
original hearing for his/her failing to appear due to unforeseen, unavoidable
or uncontrollable circumstances, such as an Act of God, the sudden illness or
death of the petitioner or a member of his/her immediate family, or of the
petitioner's legal counsel; or
2) the recent discovery of new evidence that was not known to
exist or was not known to be available at the time of the original hearing.
Evidence will not be considered "new evidence" if it could have or
should have been discovered by the reasonable exercise of diligent inquiry
and/or effort by the petitioner.
c) Rehearing requests must be in writing and directed to the
Secretary of State, Department of Administrative Hearings, Support Services,
Room 207, Howlett Building, Springfield, Illinois 62756.
d) If the interested party appears and the petitioner fails to
appear or withdraws, the hearing will be held and the testimony of the
interested party or any other witness present may be taken. The evidence
admitted at the original hearing shall be admissible at a rehearing and the
petitioner shall be deemed to have waived the right of cross-examination of any
witnesses at the original hearing.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.270 JUDICIAL REVIEW
Section 1001.270 Judicial
Review
In accordance with Section 7-102
of the Code, the provisions of the Administrative Review Law (Ill. Rev. Stat.
1985, ch. 110, pars. 3-101 et seq.), and all amendments thereto, shall apply to
and govern the judicial review of final administrative decisions of the
Department and the Secretary entered hereunder.
(Source: Former Section 1001.270
renumbered to Section 1001.280, New Section 1001.270 renumbered from Section
1001.260 and amended at 10 Ill. Reg. 4558, effective March 18, 1986)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.280 INVALIDITY
Section 1001.280 Invalidity
If any part of these Rules shall
be held by a court of competent jurisdiction to be invalid, such holding shall
not affect the remaining parts hereof.
(Source: Renumbered from Section
1001.270 at 10 Ill. Reg. 4558, effective March 18, 1986)
SUBPART C: RULES ON THE CONDUCT OF INFORMAL HEARINGS IN DRIVER'S LICENSE SUSPENSIONS AND REVOCATIONS
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.300 APPLICABILITY
Section 1001.300
Applicability
a) Lower Level Hearing; No Right to Appeal.
This Subpart applies to informal hearings conducted by driver license hearing
officers in the Department of Administrative Hearings of the Office of the
Secretary of State in various locations throughout Illinois. They are a lower
level hearing than the formal hearings conducted pursuant to Subpart A of this
Part. There is no appeal from an informal hearing to a formal hearing because
the formal hearing is a de novo proceeding. These informal hearings are
limited to the consideration of and the making of recommendations on driver's
license suspension and revocation matters and the recommendations may include
any recommendation able to be made by a formal hearing, except as provided in
subsection (b).
b) Petitions Not Subject of Informal Hearings.
An informal hearing shall not, however, consider petitions for driving relief in
the following cases:
1) the current suspension, revocation or cancellation resulted
from an offense, the facts of which involved a death;
2) for the rescission or modification of suspensions or
revocations;
3) the petitioner has 2 or more DUI dispositions during the
petitioner's lifetime, at least one of which resulted in the current open
revocation or suspension of driving privileges;
4) an open revocation entered pursuant to Section 6-206(a)1 of the Code and 92 Ill. Adm. Code 1040.35;
5) for a
restricted driving permit after an extension or reimposition of a summary
suspension entered pursuant to Section 6-206.1(l) of the Code;
6) a
renewal of any restricted driving permit if there were BAIID violations while
driving on the restricted driving permit which were not satisfactorily
explained to the BAIID Division.
7) any
hearing for reinstatement of driving privileges for which a formal hearing was
required for issuance of the restricted driving permit;
8) a
person subject to a life-time prohibition from making an application for a
driver's license under Section 6-208(b)4 of the Code regardless of the nature
of the current loss of driving privileges.
c) Jurisdiction of Informal Hearings
− Renewal of Permits. An informal hearing may, however, consider,
after initial approval or issuance at a formal hearing, a petition for the
continuation/renewal of restricted driving permits in the above cases if:
1) a restricted driving permit was granted from a formal hearing;
2) a permit is still in effect or has expired no more than 30
days from the date of the informal hearing;
3) the petitioner has not been subsequently convicted or received
court supervision for any of the following offenses:
driving under the influence or
aggravated driving under the influence,
leaving the scene of a fatal or personal injury collision, drag racing,
reckless driving, driving while suspended or revoked, fleeing or attempting to
elude a peace officer, or any of the felony offenses listed in Section
6-206(a)28 of the Code;
4) the petitioner has driven on the current permit for at least
75% of the length of the permit; and
5) the petitioner is now eligible for and requests the continuation
of the previously issued permits.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.310 DEFINITIONS
Section 1001.310 Definitions
"Department" means the
Department of Administrative Hearings of the Office of the Secretary of State.
"Director" means the
Director or Acting Director of the Department of Administrative Hearings.
"DUI Disposition" means:
any conviction or supervision for
DUI, BUI or SUI; or
any conviction for reckless
homicide in which alcohol and/or drugs is recited as an element of the offense
or other credible evidence indicates that the petitioner's/respondent's conduct
causing death involved the use of alcohol or other drugs; or
any conviction or supervision for reckless
driving that was reduced from DUI; or
any statutory summary suspension
or revocation entered pursuant to IVC Section 11-501.1; or
any suspension entered pursuant to
IVC Section 11-501.9; or
any suspension entered pursuant to
IVC Section 6-206(a)(6) for refusal of chemical testing in another state.
This definition applies to
offenses committed in another state, as well as in Illinois, regardless of
whether the offense has been recorded to the offender's Illinois criminal or
driving record. DUI Disposition does not include a suspension entered pursuant
to IVC Section 11-501.8 (zero tolerance).
"Headquarters" means the
main location of the hearing officer in each region as specified in Section
1001.340(c).
"Hearing
Officer" means the driver's license hearing officer.
"Informal Hearing" means
a hearing conducted without the formal procedures of Subpart A, is subject to
the conditions described in Sections 1001.300 and 1001.360 of this Subpart and
is conducted in designated facilities throughout Illinois.
"Informal Hearings
Division" means the division of the Department of Administrative Hearings
that is responsible for the operation and administration of informal hearings.
"Facility" means a
driver's license station operated by the Department of Driver Services of the
Office of the Secretary of State.
"Office" means the
Office of the Secretary of State and not any particular Department, address or
location.
"Person" means an
individual who seeks relief or action from the Office on a driver's license
suspension or revocation.
"Petitioner" means the
person who seeks relief from the suspension or revocation of driving privileges
pursuant to the provisions of the Illinois Vehicle Code.
"Region" means a group
of counties within which a driver's license hearing officer conducts informal
hearings.
"Work Location" means
another facility within a region at which a hearing officer conducts informal
hearings but is not the headquarters.
(Source: Amended at 45 Ill. Reg. 14985,
effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.320 RIGHT TO REPRESENTATION
Section 1001.320 Right to
Representation
Any petitioner may represent
himself or herself at an informal hearing, or may be represented by an attorney
licensed to practice law in Illinois or in another state who is specifically
permitted, by the Director of the Department pursuant to Supreme Court Rule 707
and the Illinois Rules of Professional Conduct Rule 5.5, effective January 1,
2010, to represent a petitioner at the informal hearing, upon the attorney's
verbal representations or written documentation as to the attorney's
admittance, or any law student licensed under Supreme Court Rule 711. A
petitioner may be assisted by a non-lawyer if the petitioner is representing
himself or herself.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.330 RECORD AND REPORTS
Section 1001.330 Record and
Reports
a) The hearing officer will record all proceedings on a form
prescribed and supplied by the Director. The form will include, but not be
limited to, identification information about the petitioner, a narrative from
the petitioner concerning his/her driving record and need for relief, the type
of relief sought, the violations for which the petitioner's driving privileges
were suspended or revoked, and the hearing officer's recommendation. The
recommendations of the hearing officer shall be based upon the evidence, the
driving record of the petitioner, the Illinois Vehicle Code, this Part, and any
other relevant factor.
b) The petitioner may submit any relevant and probative
documentary or testimonial evidence the petitioner wishes to have considered by
the hearing officer and the Department.
c) The report and evidence from the hearing officer shall be a
public record, and copies may be purchased for the statutory fee for copies of
Secretary of State records established in § 5.5 of the Secretary of State Act [15
ILCS 305/5.5].
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.340 LOCATION OF HEARINGS
Section 1001.340 Location of
Hearings
a) There shall be at least one hearing officer in each region.
b) The headquarters of each region shall be in the facility
located in that city, and a work location may also be established by the
supervisor for one or more hearing officers within a region.
c) The regions and headquarters shall be designated by the Secretary
or the Director of the Department and announcements of the location and days
and hours of service shall be posted at driver's license stations throughout
the State and on the Secretary of State website (cyberdriveillinois.com). This
information will be updated quarterly.
(Source: Amended at 40 Ill.
Reg. 834, effective December 31, 2015)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.350 DUTIES AND RESPONSIBILITIES
Section 1001.350 Duties and
Responsibilities
a) Hearing officers will send all reports of hearings to the
departmental office in Springfield.
b) A final decision will be made by the Director or designee at
the Department in Springfield, Illinois after consideration of all the evidence
on the record, including, but not limited to, the driving record of the
petitioner, the severity of the offenses, the frequency of offenses, the nature
and sequence of offenses, the statements submitted to the hearing officer, and
other relevant and probative factors.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.360 DECISIONS; TIME LIMITS ON OBTAINING RELIEF
Section 1001.360 Decisions; Time Limits on Obtaining Relief
a) The decision at the informal hearing is not a final order and
as such is not subject to administrative review pursuant to the Administrative
Review Law. Following an adverse decision at the informal hearing, the
petitioner may petition for a formal hearing conducted pursuant to Subpart A of
this Part. Such a formal hearing shall constitute a de novo proceeding and is
not an appeal of an adverse decision at the informal hearing.
b) If a petitioner has had an informal hearing pursuant to this
Subpart, neither a formal hearing nor another informal hearing on the same
issues and/or regarding the same type of driving relief shall be held until at
least 30 days have elapsed since the date of the last informal hearing.
c) The
Department shall notify the petitioner of the decision of the Secretary of
State by regular or electronic mail. If it is the decision of the Secretary of
State to grant driving relief, then the
Department will also provide instructions on what steps the petitioner must
take (such as, but not limited to, filing high-risk insurance, the payment of
fees, taking driving tests, etc.) in order to obtain the relief. The failure
to follow and complete these instructions will result in the denial of driving
relief.
1) Petitioners
who are granted a restricted driving permit must complete the requirements for
obtaining the permit within 90 days after the Department enters and mails the
decision of the Secretary of State. The Department reserves
the discretion to extend this deadline in order to allow a petitioner to
achieve compliance, when it is apparent that the petitioner is making a good
faith effort or the petitioner demonstrates that he or she has experienced a
change in circumstances that requires the petitioner to provide additional
information (such as, but not limited to, a change in employment).
2) Petitioners
who are granted the reinstatement of driving privileges must complete the
requirements for effecting reinstatement within 365 days after the Department
enters and mails the decision of the Secretary of State.
(Source: Amended at 31 Ill.
Reg. 6185, effective May 1, 2007)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.370 INVALIDITY
Section 1001.370 Invalidity
If any portion of this Subpart
shall be held by a court of competent jurisdiction to be invalid, such holding
shall not affect the remaining portions.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
SUBPART D: STANDARDS FOR THE GRANTING OF RESTRICTED DRIVING PERMITS, REINSTATEMENT, AND THE TERMINATION OF CANCELLATIONS OF DRIVING PRIVILEGES BY THE OFFICE OF THE SECRETARY OF STATE
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.400 APPLICABILITY; STATEMENT OF PRINCIPLE AND PURPOSE
Section 1001.400
Applicability; Statement of Principle and Purpose
a) Applicability. This Subpart applies to the decision making
process on applications for: restricted driving permits by persons whose
driving privileges have been suspended, revoked, cancelled or denied; the
issuance of restricted driving permits conditioned upon the installation of a
breath alcohol ignition interlock device (BAIID); the reinstatement of driving
privileges; the granting of driving privileges after denial; and the
termination of cancellations. Each petitioner's case is unique and all of the
evidence and the petitioner's entire driving record must be considered with
these standards before a decision is made. The issuance of both forms of
driving relief are discretionary with the Secretary of State upon the evidence
presented as set forth in this Subpart D.
b) Statement of Principle
and Purpose
1) In cases in which a person's driver's license
and driving privileges are suspended or revoked, the Secretary has been given
the following statutory mandate: In no event shall the Secretary issue such
license unless and until such person has had a hearing pursuant to the
Code and the appropriate administrative rules and the Secretary is satisfied,
after a review or investigation of such person, that to grant the privilege of
driving a motor vehicle on the highways will not endanger the public safety or
welfare. [625 ILCS 5/6-208] In the discharge of this mandate, this Subpart
D provides guidance to both the Department and the public for issuing and
obtaining driving relief.
2) In the implementation of this Subpart D,
the Office of the Secretary of State subscribes to the disease concept of
alcoholism/chemical dependency, as defined in the Alcoholism and Other Drug
Abuse and Dependency Act [20 ILCS 301/1-10] and incorporates by reference the
Jellinek chart (E.M. Jellinek, The Disease Concept of Alcoholism, Hillhouse
Press (1960, no further amendments or additions included)). Furthermore,
it is the policy of the Secretary of State that this Subpart D is to be read,
interpreted, and applied as an integrated whole, rather than separately and
individually. Therefore, the purpose of this Subpart D is to assist the hearing process to determine, first, the
nature and extent of a petitioner's alcohol/drug problem; second, whether the
petitioner's alcohol/drug problem has been resolved; and, third, whether the
petitioner will be a safe and responsible driver. The petitioner must carry the
burden of proof on each of these 3 issues by clear and convincing evidence in order
to obtain driving relief. A petitioner cannot prove that the petitioner will
be a safe and responsible driver unless and until the petitioner has proven
that the alcohol/drug problem has been resolved. The fact the petitioner has
abstained from the use of alcohol/drugs is not sufficient, in and of itself, to
prove that the petitioner's alcohol/drug problem has been resolved. Rather, a
petitioner must also demonstrate successful completion of all recommended
countermeasures and that significant improvement has occurred in the
petitioner's attitude and lifestyle from that which existed at the time of the
offenses resulting in the suspension or revocation of driving privileges, so
that the Secretary will be reasonably assured that the petitioner will be a
safe and responsible driver in the future.
3) It is
also the policy of the Secretary of State that a complete and accurate
alcohol/drug use history is essential in determining the nature and extent of a
petitioner's alcohol/drug problem and that a service provider's classification
of a petitioner's alcohol/drug problem is not credible without a complete and
accurate alcohol/drug use history. Furthermore, significant discrepancies
and/or inconsistencies among or between the alcohol/drug use history recited in
an alcohol/drug evaluation and the petitioner's testimony at a driver's license
hearing, or the other evidence admitted at a hearing, renders suspect and
unreliable a service provider's classification of a petitioner's alcohol/drug
problem.
4) The
use of breath alcohol ignition interlock device (BAIID) pursuant to the
provisions of this Subpart D is an effective tool to prevent individuals from
operating a motor vehicle after consuming alcohol. When a BAIID registers a
violation showing a permittee who has been issued a monitoring device driving
permit or a restricted driving permit that requires the use of a BAIID has
attempted to start a vehicle after consuming alcohol, that violation is proof
the permittee continues to require the use of a BAIID. Therefore, BAIID
violations that indicate the consumption of alcohol should never serve as the
sole basis for cancelling or revoking a permit, which would result in the
removal of the BAIID from the permittee's vehicle. Instead, any BAIID
violation involving the consumption of alcohol will be made part of the BAIID
permittee's record of performance to be considered at the petitioner's next
formal hearing for driving relief. A BAID Multiple Offender (BMO) permittee
who does not meet the requirements of Subpart D at the time of reinstatement as
a result of BAIID violations incurred during the monitoring period may only be
renewed for a maximum of 12 months. The petitioner must come into compliance
with all provisions of Subpart D during that 12-month renewal period. Failure
to come into compliance with Subpart D will result in denial of reinstatement
and restart the 1,826-day requirement in Sec. 1001.443.
5) This Subpart
D is to be read, interpreted, and applied as an integrated whole. Therefore, it
is insufficient to a determination of whether a petitioner's alcohol/drug
problem has been resolved and whether the petitioner will be a safe and
responsible driver for a petitioner to prove the successful completion or
accomplishment of only some or part of the requirements of the classification
of the petitioner's alcohol/drug use. Primarily, proof of long-term abstinence
from the use of alcohol/drugs is insufficient to obtain driving relief without
the successful completion or accomplishment of the other requirements of the
classification of a petitioner's alcohol/drug use. To do so would allow for
the arbitrary application of this Subpart D.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.410 DEFINITIONS
Section 1001.410 Definitions
"Abstinence"
means to refrain from consuming any type of alcohol, from any source, or other
drugs.
"Abstract"
means a summary of a driver's record of traffic law violations, accidents,
suspensions, revocations, cancellations, address and personal information of
the driver, as contained in the files of the Office of the Secretary of State.
"Accredited educational
course" means any class or course of instruction offered by an accredited
educational institution that is either vocational in nature or is part of the
matriculation process in receiving an academic degree, diploma, or certificate.
It shall also include attendance at any required instructional class in an
apprentice program and at functions and activities required to maintain the
student's status as a currently enrolled student or to fulfill the requirements
of a scholarship.
"Accredited
educational institution" means any school or institution, whether public
or private, that offers classes or courses of instruction, and that is reviewed
and approved or granted a waiver of approval by the controlling State agency.
"Alcohol"
means ethanol, commonly referred to as ethyl alcohol.
"Alcohol
and drug evaluation (Investigative)" means a printed report that conforms
to standards established by the Department, as specified in Section
1001.440(a)(6)(D). The evaluation must be completed on a form prescribed by
the Department. This evaluation will be conducted as required pursuant to
Sections 1001.420(1) and 1001.430(d), when:
the current
loss of driving privileges is not related to a DUI arrest/disposition yet:
the
petitioner's/respondent's driving record contains, or other evidence indicates
the existence of, a prior DUI disposition or any other conviction or loss of
driving privileges that was alcohol/drug related within the last 5 years (as of
the date of the hearing) for which the petitioner/respondent did not or was not
required to submit to the Secretary an alcohol/drug evaluation to obtain
driving privileges;
there is credible evidence that the petitioner had any
arrest or implied consent suspension for boating or snowmobiling under the
influence within the last 5 years (as of the date of the hearing);
the petitioner has an alcohol/drug-related criminal
conviction within the last 5 years (as of the date of the hearing), as defined
in this Section; or
the facts of the current loss of driving privileges
indicate the use or potential use of alcoholic beverages or other drugs at a
time when the offender was under the age of 21 years and within the last 5
years (as of the date of the hearing); or
there is
evidence that the petitioner/respondent may be a user of alcohol or any other
drug to a degree that renders that person incapable of safely driving a motor
vehicle. (See IVC Section 6-103.4.)
"Alcohol
and drug evaluation (Out-of-state)" means a printed report that conforms
to standards established by the Department, as specified in Section
1001.440(a)(6)(C).
"Alcohol
and drug evaluation (Uniform Report)" means a printed report that conforms
to standards established by the Illinois Department of Human Services, Division
of Substance Use Prevention and Recovery (DSUPR). (See 77 Ill. Adm. Code
2060.503.) The evaluation must be completed on a form prescribed by DSUPR.
The evaluation must be signed and dated by both the evaluator and the
petitioner.
"Alcohol
and drug evaluation (Update)" means a printed report that updates a
Uniform Report or Investigative Evaluation and conforms to standards
established by the Department, as specified in Section 1001.440(a)(6)(B). The
evaluation must be completed on a form prescribed by the Department. The
update evaluation must be completed by a program in accordance with the
provisions of Section 1001.440(a)(6)(A).
"Alcohol
and drug related driver risk education course" means an educational
program concerning the effects of alcohol/drugs on drivers of motor vehicles,
also referred to as a DUI driver remedial program, that conforms to the
standards established by DSUPR. (See 77 Ill. Adm. Code 2060.505.)
"Alcohol/drug-related criminal conviction" means
a petitioner's or respondent's record of being found guilty of violating the
Cannabis Control Act [720 ILCS 550], Illinois Controlled Substances Act [720
ILCS 570], or Methamphetamine Control and Community Protection Act [770 ILCS
646], or being found guilty of the commission of a misdemeanor or felony
offense while under the influence of, or impaired by the use of, alcohol or
other drugs, or the facts of the offense indicate that it was committed for the
purpose of obtaining alcohol or other drugs.
"Alcohol
setpoint" means the minimum or nominal BrAC (0.025) at which a device is
set to lock a vehicle's ignition.
"BAC"
means blood alcohol concentration as determined by a chemical test administered
by police authorities or medical personnel to measure the concentration of
alcohol in the bloodstream.
"BAIID
permittee" means a BAIID petitioner who has been issued an RDP as a result
of a hearing.
"BAIID
multiple offender" or "BMO" means anyone who is required to
install an interlock device on all vehicles that individual owns and operates,
pursuant to IVC Section 6-205(h), and who, therefore, is also required to drive
on a BMO permit for 5 years, pursuant to IVC Section 6-205(h), 6-208 or
11-501.01(e). Any petitioner whose current or most recent suspension or
revocation is for an offense or offenses that are not alcohol/drug-related, and
whose alcohol/drug use was the topic of previous hearings that resulted in a
finding that the petitioner's alcohol/drug problem had been resolved and who,
therefore, previously fulfilled the requirements of Sections 6-205(h) and
11-501(i), is not a BMO.
"BAIID Multiple Offender
(BMO) Restricted Driving Permit (RDP)" means an RDP that requires the use
of a BAIID that is issued only to BMOs.
"BAIID
petitioner" means anyone who, if issued a restricted driving permit, may
not operate a motor vehicle unless it has been equipped with an interlock
device as defined in this Section, as required by the IVC or this Part.
"BAIID provider" means
an entity authorized by the Secretary to contract with BAIID permittees and
MDDP offenders and distribute, supply, install, maintain and monitor BAIID devices.
A "BAIID provider" may be an authorized agent or representative of a
manufacturer or an independent entity. "BAIID provider" may be
synonymous with vendor, supplier, manufacturer, or installer.
"Breath
Alcohol Ignition Interlock Device" or "BAIID" means a mechanical
unit that is installed in a vehicle which requires the taking of a BrAC test
prior to the starting of a vehicle. If the unit detects a BrAC test result
below the alcohol setpoint, the unit will allow the vehicle ignition switch to
start the engine. If the unit detects a BrAC test result above the alcohol
setpoint, the vehicle will be prohibited from starting. The unit or
combination of units, to be approved by the Secretary, shall measure breath
alcohol concentrations by breath analysis and shall include both simple and
complex units.
"BrAC"
means the w/v breath alcohol concentration.
"BUI" means boating under the influence, as
defined in the Boat Registration and Safety Act [625 ILCS 45/5-1 through 5-21].
"Certified
controlled reference sample" means a suitable reference of known ethyl
alcohol concentration.
"Certified
transcript" means a tax return transcript document provided by and
certified by IRS that shows most line items on the return filed, including the
adjusted gross income. The transcript can be used to verify income. IRS
charges no fee for this service. Information on ordering a transcript can be
found at
https://www.irs.gov/individuals/tax-return-transcript-types-and-ways-to-order-them.
"Chemical
test" means the chemical analyses of a person's blood, urine, breath or
other bodily substance performed according to the standards promulgated by the Illinois
State Police. (See 20 Ill. Adm. Code 1286.)
"Circumvention"
means an overt, conscious effort to bypass the BAIID or any other act intended
to start the vehicle without first taking and passing a breath test.
"Clinical
impression" means a qualified treatment professional's (see Section
1001.440(b)(2) through (b)(6)) opinion regarding the effectiveness of substance
abuse treatment provided to an individual and the likelihood of future
alcohol/drug-related problems. This constitutes the treatment professional's
most reasonable clinical judgment based on direct involvement with the individual
throughout the course of treatment. It should not be interpreted as a
definitive statement regarding the likelihood of future alcohol/drug-related
problems.
"Code"
or "IVC" means the Illinois Vehicle Code [625 ILCS 5].
"Day care provider, licensed/unlicensed
– children" means a licensed "facility for childcare",
"child care institution", or "day care center", as defined
and provided for in the Child Care Act of 1969 [225 ILCS 10] and the rules of
the Department of Children and Family Services at 89 Ill. Adm. Code 406 and 89
Ill. Adm. Code 408. It also includes, for purposes of this Subpart, a private
individual or family member who, regardless of whether payment is made for the
service, provides day care services as described in the Child Care Act of 1969
and 89 Ill. Adm. Code 406.
"Day care provider,
licensed/unlicensed – elderly or disabled person" means a licensed
"adult day health center" and other community based services for
elderly and disabled persons, as defined and provided for in the All-Inclusive
Care of the Elderly Act [320 ILCS 40], the Older Adult Services Act [320 ILCS
42], the Community Senior Services and Resources Act [320 ILCS 60], the Family
Caregiver Act [320 ILCS 65], and Article III of the Illinois Public Aid Code
[305 ILCS 5]. It also includes, for purposes of this Subpart, a private
individual or family member who, regardless of whether payment is made for the
service, provides day care services as described in those statutes and the
rules of the Departments of Healthcare and Family Services and Aging.
"Decertification" means
the removal or cancellation by the Secretary of the authorization for a BAIID
provider to use, distribute or provide a particular type of BAIID to BAIID
permittees, MDDP offenders and BAIID multiple offenders.
"Department"
means the Department of Administrative Hearings of the Office of the Secretary
of State.
"Designated
driver remedial or rehabilitative program" means an alcohol or drug
evaluation, an alcohol or drug-related driver risk education course, an alcohol
or drug treatment program, the Office driver improvement program, or any
similar program intended to diagnose and change a petitioner's driving problem
as evidenced by the petitioner's abstract. (See IVC Sections 6-205(c) and 6-206(c)3.)
"Device"
means a breath alcohol ignition interlock device approved by the Secretary.
"Director"
means the Director or Acting Director of the Department.
"Disabled person" means
any person who is, and who is expected to indefinitely continue to be, subject
to any of the 5 types of disabilities listed in Section 4A of the Illinois
Identification Card Act [15 ILCS 335/4A] or who is disabled as defined in
Article III of the Illinois Public Aid Code. It also means any person whose
disability is verified by the person's treating physician.
"Documentation
of abstinence" means testimony and documentation, in the form of
affidavits, letters, etc., from individuals who have regular, frequent contacts
with the petitioner (e.g., spouse, significant other, employer, co-workers,
roommates) verifying that to the best of their knowledge the petitioner has
been abstinent from alcohol/drugs for a specified period of time, according to
the standards stated in Section 1001.440(e).
"Driver
License Compact" is an agreement among signatory states that deals with
the problems of: issuing drivers' licenses to people who move from one
signatory state to another; and drivers who are licensed in one signatory state
and convicted of traffic offenses in other such states. The Compact has been
codified in Illinois and is found in IVC Chapter 6, Article VII.
"DSUPR" means the
Illinois Department of Human Services, Division of Substance Use Prevention and
Recovery.
"DUI"
means driving under the influence.
"DUI disposition" means
any conviction or supervision for DUI, BUI or SUI, or any conviction for
reckless homicide when alcohol and/or drugs is recited as an element of the
offense or other credible evidence indicates that the petitioner's/respondent's
conduct causing death involved the use of alcohol or other drugs, or reckless
driving reduced from DUI, or any statutory summary suspension or implied
consent suspension, except summary suspensions entered pursuant to Section
11-501.8 of the Code (zero tolerance suspensions). This
definition applies to offenses that are committed in other states as well as in
Illinois, and regardless of whether the offense has been recorded to the
offender's Illinois criminal or driving record.
"Elderly person" means a
person age 60 or over who does not possess driving privileges or who, due to
age or infirmity, is not able to exercise those driving privileges.
"Employ"
or "employed" or "employment" shall all relate to activity
for compensation to support oneself or one's dependents as well as activities
ordered by a court in connection with a sentence that includes the completion
of a term of community service. Employment need not be the sole or primary
means of support for the petitioner or the petitioner's dependents.
"Evaluator"
means any person licensed to conduct an alcohol and drug evaluation by DSUPR.
(See 77 Ill. Adm. Code 2060.201.) A treatment provider may be considered an
evaluator for the purpose of completing an update evaluation in accordance with
Section 1001.440(a)(6)(A).
"Failure
to successfully complete a running retest" means any time the BAIID
Permittee registers a BrAC reading of 0.05 or more on a running retest or fails
to perform a running retest that has been requested.
"Fee"
means the statutory fees for restricted driving permits or reinstatement of
driving privileges, as specified in IVC Section 6-118.
"Hearing"
means informal hearings and/or formal hearings.
"High
Risk" means the classification resulting from an alcohol and drug
evaluation assigned to a petitioner with either:
symptoms of
substance dependence (regardless of driving record), referred to in this Part
as High Risk Dependent. This classification shall be assigned to a petitioner
who has experienced the required number of symptoms within any 12 month period,
as defined by the Diagnostic and Statistical Manual of Mental Disorders, and
regardless of whether the petitioner has attained a sustained period of
remission/abstinence at the time that the evaluation is conducted; and/or
within the 10 year period prior to
the date of the most current (third or subsequent) arrest, any combination of
two prior convictions or court ordered supervisions for DUI, BUI or SUI, or
prior statutory summary suspensions, or prior reckless driving convictions
reduced from DUI, resulting from separate incidents, referred to in this Part
as High Risk Nondependent. (See 77 Ill. Adm. Code 2060.503(g).) This
definition applies to offenses that are committed in other states as well as in
Illinois, and regardless of whether the offense has been recorded to the
offender's Illinois driving record.
"Immediate
family" means a member of the petitioner's household, the petitioner's
parents, grandparents, children, grandchildren and stepchildren who live with
the petitioner, and significant other.
"Initial
Monitor Report" means the monitor report obtained or required to be
obtained within the first 30 days after initial installation of the device.
"Installer"
means an individual trained by a BAIID provider or manufacturer to install,
repair, maintain, or monitor a BAIID and employed by an authorized BAIID
provider, service center, vendor or manufacturer. "Installer" is
synonymous with an authorized entity providing installation, repair, or monitoring
services to BAIID permittees and MDDP offenders through those trained
individuals.
"Lifetime Permit" means
a permit only issued to a petitioner having four or more DUI convictions, the
last arrest of which occurred on or after January 1, 1999.
"Lockout" means the
device must prevent engine ignition by a virtual lock with 90% certainty or
near absolute lock at 99.5% certainty.
"Manufacturer"
means the maker of a BAIID or its authorized representative.
"MDDP"
means a monitoring device driving permit, issued pursuant to Section 6‑206.1
of the IVC. A MDDP is not a restricted driving permit.
"MDDP holder" means an
MDDP offender who has been issued an MDDP by the Office of the Secretary of
State.
"MDDP
offender" means a person who is a first offender as defined in Sections
11-500 and 6-206.1 of the IVC.
"Medical cannabis" means
the prescribed use or consumption of cannabis as defined and authorized by the
Compassionate Use of Medical Cannabis Pilot Program Act [410 ILCS 130].
"Medical
or physical BAIID modification" means a demonstrated physical or medical
condition documented in writing by a physician that consistently interferes
with the normal operation of the BAIID by the BAIID permittee or MDDP offender
for which the Department may authorize a modification of the BAIID or its
programming to accommodate the condition without violating the BAIID rules and
statutory requirements.
"Medical
or Physical BAIID Waiver" means a demonstrated physical or medical
condition, documented in writing by a physician, that consistently interferes
with or prevents the normal operation of the BAIID by the BAIID permittee or
MDDP offender for which the Department may authorize a waiver of the BAIID.
"Minimal Risk" means the
classification resulting from an alcohol and drug evaluation assigned to a
petitioner who has:
no prior
conviction or court ordered supervisions for DUI, BUI or SUI, no prior
statutory summary suspensions, and no prior reckless driving conviction reduced
from DUI; and
a blood
alcohol concentration (BAC) of less than .15 as a result of the most current
arrest for DUI; and
no other
symptoms of substance abuse or dependence. (See 77 Ill. Adm. Code
2060.503(g).)
This
definition applies to offenses that are committed in other states as well as in
Illinois, and regardless of whether the offense has been recorded to the
offender's Illinois criminal or driving record.
"Moderate
Risk" means the classification resulting from an alcohol and drug
evaluation assigned to a petitioner who has:
no prior
conviction or court ordered supervisions for DUI, BUI or SUI, and no prior
statutory summary suspensions, and no prior reckless driving conviction reduced
from DUI; and
a blood
alcohol concentration (BAC) of .15 to .19 or a refusal of chemical testing as a
result of the most current arrest for DUI; and
no other
symptoms of substance abuse or dependence. (See 77 Ill. Adm. Code
2060.503(g).)
This
definition applies to offenses that are committed in other states as well as in
Illinois, and regardless of whether the offense has been recorded to the
offender's Illinois criminal or driving record.
"Monitor
report" means an electronic report or a printout of the activity of a
device obtained by the manufacturer or installer at the time of an inspection
of the device which shall include at a minimum the number of successful and
unsuccessful attempts to start the vehicle and rolling retests, including each
date, time, and BrAC reading, and any evidence of tampering or circumvention of
the device.
"National
Driver Register" means a central index, maintained by the U.S. Department
of Transportation, of individuals whose driving privileges are denied,
terminated or withdrawn, as reported by the states' driver licensing
authorities.
"Near-alcoholic
beverage" means a beverage with an alcohol content of .05 percent or less.
"Office"
means the Office of the Secretary of State and not any particular department
address or location.
"Permanent
lockout" means that feature of the device that prevents a vehicle with the
device installed from starting after the lapse of the 5 days (see 92 Ill. Adm.
Code 1001.442(e)(7)) and requires servicing by the manufacturer/installer of
the device to make the vehicle operable for failure to take the vehicle with
the device to the manufacturer or installer for any required monitor report or
for any failure to send the device to the manufacturer within 5 days after any
service or inspection notification.
"Petitioner"
is the party who seeks or applies for relief from the Office from the
suspension, revocation, cancellation, or denial of driving privileges pursuant
to the provisions of the Illinois Vehicle Code.
"Problem Driver Pointer
System" or "PDPS" is a pointer file consisting of an index of
problem drivers (as determined by adverse driver's license actions) that is
maintained by a driver's home state (state of record (SOR)) and is accessed by
other states (state of inquiry (SOI)) to determine a person's eligibility to
apply for a driver's license. (See Secretary of State rules at 92 Ill. Adm.
Code 1040.70.)
"RDP"
means a restricted driving permit, as defined by IVC Section 1-173.1 and
limited as specified in IVC Sections 6-205(c) and 6-206(c).
"Reinstatement"
means the restoration of driving privileges entitling the petitioner to apply
for a new driver's license in accordance with the requirements of the Illinois
Vehicle Code and this Part.
"Respondent"
means a person against whom a complaint or petition is filed, or who, by reason
of interest in the subject matter of a petition or application or the relief
sought through that action, is made a respondent or to whom an order or
complaint is directed by the department initiating a proceeding.
"Running
retest" means that feature of the device that requires the driver to take
additional BrAC tests after the initial test to start the vehicle.
"Secretary"
means the Illinois Secretary of State or the Secretary's designee.
"Service
or inspection notification" means that feature of the device that advises
or notifies the BAIID permittee or MDDP offender to either take the vehicle
with the device installed to the BAIID provider or installer or send the device
to the BAIID provider or installer for the required inspection and the monitor
report.
"Service
center" means an authorized dealer, distributor, supplier, or other
business engaged in the installation of BAIIDs and is synonymous with
installer.
"Show cause hearing" means
that the Secretary has good cause to believe that a driver may be a danger to
public safety and welfare for violations of IVC Sections 6‑103, 6-108,
6-207 and/or 6-201(a). The Department will send notice to the driver, who then
has an opportunity to show cause why driving privileges should not be cancelled
at a formal hearing conducted pursuant to IVC Section 2‑118.
"Significant
other" means any person with whom an individual is experiencing an
ongoing, close association that represents a meaningful part of that
individual's established lifestyle(e.g., spouse, other family member, employer,
co-worker, clergy member, roommate).
"Significant
Risk" means the classification resulting from an alcohol and drug
evaluation assigned to a petitioner who has:
one prior
conviction or court ordered supervision for DUI, BUI or SUI, one prior
statutory summary suspension, or one prior reckless driving conviction reduced
from DUI; and/or
a blood
alcohol concentration (BAC) of .20 or higher as a result of the most current
arrest for DUI; and/or
other
symptoms of substance abuse. (See 77 Ill. Adm. Code 2060.503(g).)
This
definition applies to offenses that are committed in other states as well as in
Illinois, and regardless of whether the offense has been recorded to the
offender's Illinois criminal or driving record.
"Stressed"
means conditions such as temperature extremes, vibration, and power
variability.
"SUI" means snowmobiling under the influence, as
defined in the Snowmobile Registration and Safety Act [625 ILCS 40/Art. V].
"Support/recovery
program" means specific activities that a recovering alcoholic/chemically
dependent person has incorporated into the person's life style to help support
continued abstinence from alcohol and other drugs. This may include, but is
not limited to, participating in a self-help program (Alcoholics Anonymous,
Narcotics Anonymous, etc.) or a professional support group, or regularly and
frequently engaging in religious or other activities which have a distinct and
positive effect on an individual's continued abstinence. Any program and its
relationship to the individual's ability to remain abstinent must be clearly
identified and verified by proper documentation independent from an
individual's self report (such as indicated in Section 1001.440(e) through
(i)). The hearing officer shall determine the viability of the petitioner's
program as a means of supporting continued abstinence, taking into account all
the evidence brought forward at the hearing, as well as considering whether the
program is substantially consistent with the following criteria:
The program
encourages life style change that involves the replacement of substance using
activity with non-substance using activity; a strong focus of the program is to
provide ongoing assistance in identifying and resolving substance
dependency-related issues that may jeopardize an individual's continued
recovery;
The program
encourages positive individual values of responsibility and honesty, as well as
less self-centered thinking;
The program
has demonstrated a durability and stability over time that reflects its
usefulness in supporting long-term recovery.
"Tampering"
means an overt, conscious attempt to disable or disconnect the interlock
device.
"Treatment
Needs Assessment" means an assessment of a petitioner's current need for alcohol/drug treatment, counseling, or other
intervention services or rehabilitative activity, composed by a licensed
treatment provider.
"24 hour
lockout" means that feature of the device that causes a vehicle with the
device installed to become inoperable for a period of 24 hours any time the
device registers 3 BrAC readings of 0.05 or more within a 30 minute period.
"Undue hardship as it relates
to court ordered activities" means an extreme difficulty in getting to and
from a location where a petitioner is participating in or fulfilling the
requirements of conditional discharge, probation or parole, such as, but not
limited to, community service, support groups, and treatment for illnesses or
disorders. This does not include getting to and from primary treatment for
alcohol/drug abuse. It means more than mere inconvenience to the petitioner.
All other reasonable means of transportation must be unavailable to the petitioner.
The impact on the family unit is a valid consideration. An undue hardship is
not shown by the mere fact that the driving privileges are suspended or
revoked.
"Undue hardship as it relates
to day care for children or an elderly or disabled person" means an
extreme difficulty in getting a member of the petitioner's immediate family to
and from a day care provider or a pre-school. It means more than mere
inconvenience to the petitioner. All other reasonable means of transportation
must be unavailable to the petitioner. The impact on the family unit is a
valid consideration. An undue hardship is not shown by the mere fact that the
driving privileges are suspended or revoked.
"Undue
hardship as it relates to educational pursuits" means an extreme difficulty
in getting to and from the location of the accredited education course, due to
the loss of driving privileges. It also means an extreme difficulty in getting
a member of the petitioner's immediate family to and from pre-school,
elementary school or high school, or their equivalent. "Educational
pursuits" include activities and events conducted, and services provided,
by the school district, immediately before and/or after the school day begins;
functions and activities required to maintain the student's status as a
currently enrolled student; and functions and activities required to fulfill
the requirements of a scholarship. It means more than mere inconvenience to
the petitioner. All other reasonable means of transportation must be unavailable
to the petitioner. The impact on the family unit is a valid consideration. An
undue hardship is not shown by the mere fact that the driving privileges are
suspended or revoked.
"Undue
hardship as it relates to employment" means, as used in the context of IVC
Sections 6-205(c) and 6-206(c)3, an extreme difficulty in regard to getting to
or from a petitioner's place of employment or to operate on a route during
employment; e.g., as delivery person, because of the suspension, revocation, or
cancellation of the petitioner's driving privileges. It means more than mere
inconvenience on the petitioner and pertains only to the petitioner. All other
reasonable means of transportation must be unavailable to the petitioner. The
impact on the family unit is a valid consideration. An undue hardship is not
shown by the mere fact that the driving privileges are suspended or revoked.
"Undue
hardship as it relates to necessary medical care" means an extreme
difficulty in regard to getting to and from a location where petitioner or a
member of the petitioner's immediate family receives examinations, therapy or
treatment, etc., prescribed or recommended by a licensed physical or mental
health care provider. It means more than mere inconvenience. There must be no
other reasonable alternative means of transportation available. The impact on
the family unit is a valid consideration. An undue hardship is not
demonstrated by the mere fact that the petitioner's driving privileges are
suspended or revoked.
"Undue
hardship as it relates to support/recovery program" means an extreme
difficulty in regard to getting to and from a location where a petitioner is
participating in an ongoing support program. It means more than mere
inconvenience. There must be no other reasonable alternative means of
transportation available. The impact on the family unit is a valid
consideration. An undue hardship is not demonstrated by the mere fact that the
petitioner's driving privileges are suspended or revoked.
"Unsuccessful
attempt to start the vehicle" means anytime the BAIID permittee or MDDP
offender registers a BrAC reading of 0.025 or more on the device when
attempting to start the vehicle.
"Vehicle",
for purposes of the Breath Alcohol Ignition Interlock Device Program, means every
apparatus in, upon or by which any person or property is or may be transported
or drawn upon a highway and that is self-propelled, except for apparatuses
moved solely by human power, motorized wheelchairs, motorcycles, motor driven
cycles and vehicles that require a commercial driver's license to operate.
"Vendor"
means a retail or wholesale supplier of a device, and may include a service
center.
"W/V"
means weight of alcohol in the volume of breath based upon grams of alcohol per
210 liters of breath.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.420 GENERAL PROVISIONS RELATING TO THE ISSUANCE OF RESTRICTED DRIVING PERMITS
Section 1001.420 General
Provisions Relating to the Issuance of Restricted Driving Permits
a) Burden of Proof. In every petition for driving relief, the
petitioner must prove, by clear and convincing evidence, that the petitioner
will not endanger the public safety and welfare.
1) Burden
of Proof; Not Eligible for Reinstatement – Hardship Required. Petitioners who
are not eligible for reinstatement of driving privileges or whose driving
privileges are suspended at the time of their hearing must prove, by clear and
convincing evidence, that there is no reasonable alternative means of
transportation available, that they will not endanger the public safety and
welfare, and that an undue hardship will result if they are not issued an RDP.
The Secretary of State does not weigh the nature or extent of a petitioner's
hardship against the risk the petitioner poses to the public safety and
welfare. Rather, the petitioner must first carry the burden of proving that the
petitioner will not endanger the public safety and welfare in order for the
Secretary of State to consider whether the petitioner has an undue hardship.
2) Burden
of Proof; Eligible for Reinstatement – Hardship Not Required. The Secretary
reserves the discretion to issue an RDP to petitioners who are eligible for
reinstatement at the time of their hearing, when warranted by the facts and circumstances
reflected in the evidence submitted at the petitioner's hearing, and subject to
the terms and conditions of Sections 1001.430 and 1001.440.
b) RDP Classifications
1) Employment. A petitioner for an employment related RDP must
be currently employed, or present a verifiable commitment for employment, and
the employment must be verified upon forms prescribed by the Department. If
the petitioner is self-employed, evidence of self-employment can include, but
is not limited to, stationery, business card, official receipt, check, State or
Federal tax returns or letters from business associates.
2) Medical or Treatment. A petitioner for an RDP for medical or
treatment purposes must provide verifiable documentation from the licensed
physical or mental health care provider involved that the petitioner or a
member of the petitioner's immediate family (who is unable to operate a motor
vehicle) must receive or is receiving services on a regularly scheduled basis.
3) Court Ordered Activities and Community Service. A petitioner
for an RDP for court ordered activities or community service must provide
certified court documents detailing the terms of the service or activity,
including but not limited to the place or places the service or activity is performed,
the hours during which the service or activity is to be performed and the
nature of the service or activity. This does not include getting to and from
primary treatment for alcohol/drug abuse. The attendance or participation in
treatment or support meetings must be verified and documented in the manner
specified in this subsection (b)(3).
4) Educational. A petitioner for an educational RDP must be
currently enrolled, or intend to enroll for the next available session, in an
accredited educational institution for the purpose of taking an accredited
educational course or courses, to attend or participate in functions and
activities required to maintain the student's status as a currently enrolled
student, or to fulfill the requirements of a scholarship. A petitioner who is
applying for an educational RDP to enable the petitioner to drive members of the
petitioner's immediate family to school or other education pursuits, as defined
in this subsection (b)(4), must provide evidence that the members of the
immediate family are currently enrolled, or will be enrolled for the next
available session, in an accredited pre-school, elementary school or high
school, or their equivalent. Prior to the issuance of any educational RDP, the
petitioner must submit verification by the institution of the petitioner's, or
the immediate family member's, enrollment. The verification shall be on a form
provided by the Secretary of State.
5) Support/Recovery
A) A petitioner for a support/recovery program RDP must provide
verifiable documentation, from members of the group or program, that the
petitioner has been attending meetings on a regular basis.
B) A petitioner who wishes to begin or resume participation in a
support/recovery program, but who resides alone or in a household in which
there is no other licensed driver and/or resides in a remote location in or
near a community in which public transportation is not available, will be
considered for a support/recovery program RDP if the petitioner proves abstinence
from all alcohol and drugs for a minimum of 12 months and has satisfied the
other provisions of this Subpart.
6) Day
Care. A petitioner who requests an RDP for day care purposes must identify the
children or other person who is to receive the day care services, specify the
nature of the services, and provide verifiable documentation from the day care
provider that it is providing day care services to a member of the petitioner's
immediate family. The verification shall be on a form provided by the
Secretary of State. A person's disability must be verified by providing the
Department with a copy of the person's Illinois Disabled Person Identification
Card. An elderly person's age must be verified by providing the Department
with a copy of the person's Illinois Identification Card, Social Security Card,
birth record, or some other, credible proof of age. The petitioner must also
be able to verify the reason why the elderly person is not able to drive independently.
7) Reckless Homicide, Aggravated DUI Involving a Fatality, and
Lifetime Revocations. A petitioner who has an open revocation for reckless
homicide or aggravated driving under the influence that involved a fatality, or
whose driving privileges are revoked for life, must submit, with the petition
for driving relief, either a copy of the Order of the circuit court that states
the sentence received upon conviction, certified by the Clerk of the Court, or
a document from the Department of Corrections that reflects: the offense for
which the petitioner was imprisoned; the date of release from imprisonment; and
the terms of release or parole. For the purpose of determining a petitioner's
eligibility for the issuance of a restricted driving permit pursuant to IVC
Sections 6‑205(c) and 6-206(c)3, the date of release from imprisonment
refers to the imprisonment on the conviction for the offense and does not
include release from imprisonment for a violation of parole or probation. It is
the responsibility of the petitioner to provide documentation that clearly
reflects the date of release from imprisonment.
8) Except
as specified in subsection (b)(7), the verifications and documentation required
by this Section need not be provided at the time of the hearing. It is,
however, strongly encouraged and it is the petitioner's responsibility to
provide detailed contact information when applicable. Furthermore, the failure
of the petitioner to provide verification or documentation at the time of the
hearing is not a sufficient basis, in and of itself, to deny driving relief.
c) Jurisdiction/Eligibility. An RDP may be granted only after
suspension, revocation, or cancellation for the offenses listed in IVC Sections
6-205, 6-206, 6-303 or 6-201(a)5 as it relates to IVC Sections 6-103.4,
11-501.1, 11-501.6 and 11-501.8. Petitioners who are eligible to apply for an
MDDP are not eligible for and will not be considered for an RDP, except as
provided in Section 6-206.1(l) or this Part.
d) Undue
Hardship – Burden of Proof and Types. If not yet eligible for reinstatement, a
petitioner must prove by clear and convincing evidence that an undue hardship
is currently being suffered as a result of the inability to legally operate a
motor vehicle. Mere inconvenience to the petitioner or family and friends
is not undue hardship. The petitioner should produce clear and convincing
evidence as to the unavailability of reasonable alternative means of
transportation, as defined in Section 1001.410, such as but not limited to:
walking, mass transit, car pools, or being driven; how the petitioner is
currently getting to the destination; whether driving is required in the course
of employment; the distance between the petitioner's residence and the
destination; and similar factors relating to employment, necessary medical
care, support/recovery program meetings, court ordered activity and community
service, educational pursuits, and/or day care services.
1) Appropriate limits will be established for necessary
on-the-job driving. The days, hours, and mileage limits will not exceed those
absolutely necessary for the accomplishment of the petitioner's primary
employment and shall be limited to a maximum of 12 hours per day and 6 days per
week unless the request for increased limits is substantially documented, such
as through an employer's verification of the petitioner's work schedule.
2) A support/recovery program RDP may include attendance at no
more than 5 meetings per week.
3) An
educational RDP will be subject to appropriate limits necessary to allow the
petitioner or immediate family members to get to and from the subject
institution/courses, schools, and educational pursuits. The days and hours will
not exceed those absolutely necessary for that purpose and shall be limited to
a maximum of 12 hours per day and 6 days per week. Additional parameters to
consider in setting these limits shall include whether the petitioner or immediate
family members commute daily to the courses, schools and educational pursuits; are
required to participate in clinical or student teaching programs in order to
fulfill the requirements for a degree in their chosen field, to participate in
functions and activities in order to maintain the student's status as a
currently enrolled student, or to fulfill the requirements of a scholarship; or
live on, or within a radius of one mile from, the campus and only need to drive
to and from the institution on an infrequent basis (less than once per week)
and are then able to get to the courses or the educational pursuits by other
means of transportation. An educational permit will not be issued to allow a
student to drive between the student's permanent residence and the educational
institution on a weekend visit. The permit shall expire at the conclusion of
the period for which it is granted.
4) A
petition for a day care RDP will be considered to allow the petitioner to drive
the child to a day care provider while the petitioner is engaged in other
activities, regardless of whether the petitioner is issued an RDP to drive to
and from those activities, and to enable the child to receive day care
services.
A) A
petition for a day care RDP will be considered for noncustodial parents.
Factors to be considered include, but are not limited to, how frequently the
noncustodial parent requests permission to transport the children, the distance
between the petitioner's residence and that of the custodial parent, the route
to be traveled, which must be consistent and in conjunction with the other activities
engaged in by the petitioner, and any other relevant evidence presented by the
petitioner.
B) In
relation to day care for an elderly or disabled member of the petitioner's
immediate family, a day care RDP will be considered to allow the petitioner to
drive the person to a day care provider to receive identifiable services and to
allow the petitioner to drive the person to a day care provider while the
petitioner is engaged in other activities, regardless of whether the petitioner
is issued an RDP to drive to and from those activities.
e) A
petitioner shall be permitted to stop for gas, to use electric vehicle charging
stations, or emergency vehicle repairs while driving on an RDP. Routine
vehicle care, including but not limited to oil changes, tire rotation,
alignment and emission testing, or service performed substantially outside the
geographical parameters of the permit, does not qualify for this exception.
f) Factors Considered. Factors that will be considered by the
Department in determining the propriety of granting a petitioner an RDP
include, but are not limited to: the petitioner's age; whether the petitioner
has driven while suspended or revoked; duration of present employment; number
of years licensed to drive; number, severity, and frequency of accidents;
frequency, type, and severity of traffic violations; efforts at rehabilitation
or reform of past driving practices; demeanor of petitioner in the hearing;
credibility of petitioner and witnesses in the hearing; credibility of and
weight given to the petitioner's documentary evidence; petitioner's total
driving record, including but not limited to reasons for violations, prior
permits issued (unless the permits were issued pursuant to the order of a
circuit or appellate court following an administrative review action), the
length of time that the petitioner actually drove or has been driving on
permits, and driving record while on those permits; record
of performance while driving with an interlock device; driving
history in another state if licensed previously; any
arrest or implied consent suspension for boating or snowmobiling under the
influence; petitioner's alcohol/drug-related criminal record as defined in
Section 1001.410; whether the petitioner was incarcerated and
successfully participated in any rehabilitative activity during incarceration;
whether the petitioner complied with the terms and conditions of probation or
parole; and psychiatric reports when the evidence shows that the petitioner is
suffering or has suffered from a mental disorder that might affect the ability
to operate a motor vehicle in a safe and responsible manner.
g) Public Safety and Welfare. Pursuant to IVC Sections 6-205(c)
and 6-206(c)3, the public welfare and safety must not be endangered by the
issuance of an RDP. The evidence must show that the petitioner will operate a
motor vehicle safely so as not to be a danger to the petitioner or others. The
mere passage of time since the date of revocation is not sufficient evidence.
h) Ticket Pending. An RDP will not be issued while any moving
traffic offense is pending against a petitioner in any court of this or any
other state, unless the pending citation or citations are also the only cause
of the current loss of driving privileges.
i) Referral to Remedial Program. A petitioner who is otherwise
eligible for an RDP may be referred to a remedial or rehabilitative program
prior to the permit's issuance, if the driving record warrants these measures.
(See IVC Sections 6‑205(c) and 6-206(c)3.)
j) Permits For Which Hardship Not Required
1) A probationary
permit is an RDP issued to the petitioner in lieu of reinstatement when
eligible for reinstatement of driving privileges as a probationary device. It
cannot be issued to a petitioner who is not yet eligible for reinstatement, a BMO,
or a lifetime permittee.
2) A BMO RDP is issued to a person who is required to drive on a
BAIID RDP for a period of 5 years pursuant to IVC Section 6-205(h), 6-208(b)(1.3)
or 11.501.01(e) (2 or more prior offenses under IVC Section 11-501, or a
similar provision of a local ordinance or out-of-state offense). BMO RDPs may
be issued in increments of 2 years and are renewable at informal hearings,
unless a petitioner has BAIID violations that were not satisfactorily explained
to the BAIID Division during the reporting period, in which case the petitioner
can only renew the BMO RDP at a formal hearing. A BMO permittee shall operate
only vehicles with an installed, operating BAIID certified by the Secretary,
regardless of whether the vehicle is owned, rented, leased, loaned or otherwise
in the possession of the BMO permittee, and shall be subject to all rules and
obligations of this Section pertaining to BAIID installation, use and
compliance.
A) The
BMO permittee must maintain 1,826 consecutive days of BAIID installation and
utilization on all registered vehicles as defined in Section 1001.443(a) prior
to being eligible to apply for reinstatement. Any de-installation of the BAIID
device without prior approval from the BAIID Division will cause the 1,826
consecutive day period required by Section 1001.430(e) to restart.
B) Upon
the successful completion of 1,826 consecutive days on a BMO RDP, the permittee
may apply for reinstatement. The Secretary of State may, in its discretion,
grant reinstatement or issue an RDP that requires use of a BAIID (not a BAIID
and five full years on a BMO RDP).
C) BMO
RDPs will be issued, without regard to hardship, for any legitimate purpose 12
hours per day, 6 days per week within a 200- mile radius of the permittee's
residence.
k) Out-of-state Resident; Eligibility. An RDP will be issued to
an out-of-state resident only if that individual has a valid license to drive
issued by the jurisdiction in which the individual resides or is eligible to
apply for a license or restricted permit to drive; the individual has a
verified employment, medical, day care, court ordered activity, or educational
related need to drive in Illinois; and the individual complies with all other
requirements of this Subpart.
l) New Resident of Illinois; Eligibility. An RDP will not be
issued to a new resident of Illinois if driving privileges are suspended in
another jurisdiction until such time as that suspension is terminated. An RDP
may be issued to a new resident of Illinois if driving privileges are revoked
in another jurisdiction, pursuant to IVC Section
6-103.1, under the following conditions:
1) At least one year has expired from the date of the revocation
yet the revocation period has not expired; and
2) The petitioner meets all other applicable requirements of this
Subpart.
m) Resident
of Illinois for More than 10 Years with an Out-of-State Revocation
1) A
person who has been a resident of the State of Illinois for at least 10
consecutive years and has not more than one out-of-state revocation is eligible
to apply for an Illinois driver's license under the following conditions:
A) Petitioner
is able to prove, by clear and convincing evidence, continuous Illinois
residency for at least 10 years. Proof of residence may include, but it not
limited to, the forms of identification listed in 92 Ill. Adm. Code
1030.Appendix B;
B) Petitioner
shall have no more than one revocation, either open or closed, on the
petitioner's driving record in any other state;
C) Petitioner
is eligible for reinstatement in the state of revocation; and
D) Petitioner
meets all other applicable requirements of this Subpart.
2) A petitioner under this subsection (l) shall only be eligible
for a non-CDL classification of Illinois driver's license. A petitioner who is
not eligible for reinstatement in the state of revocation may apply for an RDP
pursuant to IVC Section 6-103.1.
n) Decision. The Director or a designee shall make the final
decision, on each petition, on behalf of the Secretary. If relief was sought
at a formal hearing, petitioners will receive a copy of the hearing officer's
Findings of Fact, Conclusions of Law, and Recommendations, and the Secretary's
Order.
o) Investigative Evaluation Required
1) A petitioner will be required to complete and submit an
investigative alcohol and drug evaluation as part of the Secretary's
investigative process, where the evidence, including the petitioner's driving
record, indicates that:
A) the
current loss of driving privileges is not related to a DUI arrest/disposition
yet:
i) the
petitioner's/respondent's driving record contains, or other evidence indicates
the existence of, a prior DUI disposition or any other conviction or loss
of driving privileges that was alcohol/drug related within the last 5 years (as
of the date of the hearing) for which the petitioner/respondent did not or was
not required to submit to the Secretary of State an alcohol/drug evaluation to
obtain driving privileges;
ii) there is credible evidence that the petitioner
had any arrest or implied consent suspension for boating or snowmobiling under
the influence within the last 5 years (as of the date of the hearing);
iii) the petitioner has an alcohol/drug-related
criminal conviction within the last 5 years (as of the date of the hearing), as
defined in Section 1001.410; or
iv) the facts of the current loss of driving
privileges indicate the use or potential use of alcoholic beverages or other
drugs at a time when the offender was under the age of 21 years and within the
last 5 years (as of the date of the hearing); or
B) the petitioner/respondent may be a user of alcohol or any other
drug to a degree that renders that person incapable of safely driving a motor
vehicle. (See IVC Section 6-103.4.)
2) The
petitioner will be required to complete any recommended rehabilitative activity
or provide a waiver. Furthermore, if any
rehabilitative activity (i.e., a driver risk education course, intervention, or
treatment for alcohol/drug abuse) is
recommended, then the petitioner must submit
an update evaluation, as provided in this Subpart D, until the petitioner's
driving privileges are reinstated.
An update evaluation is required even if the waiver is based upon the fact that
the petitioner completed treatment prior to the date that the investigative
evaluation was conducted.
3) The requirements of this
subsection (m) also apply to an investigative evaluation that is submitted by a
petitioner voluntarily.
4) The Department reserves the
discretion to waive the requirements of an investigative evaluation if the
current criminal offense is a misdemeanor and there is no other evidence of a
current alcohol or drug problem.
p) Examination. A petitioner whose driving privileges have been
revoked or cancelled or whose driver's license has expired will be required to
submit to a driver's license examination prior to the issuance of an RDP.
q) Fourth Conviction. The Secretary of State may issue a
Lifetime RDP to any person who has a fourth or subsequent conviction and
revocation for the offenses listed in IVC Section 6-208(b)(4) if that person
meets the requirements of IVC Section 6-205(c)(1.5) or 6-206(c)(3)(F). If the
fourth conviction was entered in another state, the record of which is available
only from the PDPS, then the date of withdrawal as shown on the PDPS will be
taken as the date of revocation. The person must establish an undue hardship
as defined in Section 1001.410 and the person must prove an undue hardship
during the entire time that the person drives on the Lifetime RDP. Lifetime RDPs
will be issued only for the tasks and activities stated in this Section. A
person issued an RDP pursuant to IVC Section 6-205(c)(1.5) or 6-206(c)(3)(F)
who is subsequently convicted of a violation of IVC Section 11-501, a similar
provision of a local ordinance or a similar offense in another state shall have
the Lifetime RDP cancelled and the person may not be issued any further driving
relief, including a Lifetime RDP.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.430 GENERAL PROVISIONS FOR REINSTATEMENT OF DRIVING PRIVILEGES AFTER REVOCATION
Section 1001.430 General
Provisions for Reinstatement of Driving Privileges after Revocation
a) Conviction is Dispositive. In all cases, a conviction in a
court of law in Illinois or any other state is dispositive of the guilt of a
petitioner of the offense that caused the revocation.
b) Cause Removed. If revocation was for a cause that has been removed,
such as the reversal of a conviction upon which revocation was entered, the
petitioner must demonstrate that fact by clear and convincing evidence.
c) Hardship
Not Required; Factors Considered. A petitioner who is otherwise eligible for
reinstatement of driving privileges at the time of the hearing is not required
to prove an undue hardship as a condition of being, or in order to be,
reinstated. The factors that will be considered by the Department in
determining the propriety of reinstating a petitioner whose driving privileges
have been revoked include but are not limited to: the petitioner's age; whether
the petitioner has driven while suspended or revoked; duration of present
employment; number of years licensed to drive; number, severity, and frequency
of accidents; frequency, type, and severity of traffic violations; efforts at
rehabilitation or reform of past driving practices; demeanor of petitioner in
the hearing; credibility of petitioner and witnesses in the hearing;
credibility of and weight given to the petitioner's documentary evidence;
petitioner's total driving record, including but not limited to reasons for
violations, prior permits issued (unless such permit was issued pursuant to the
order of circuit or appellate court following an administrative review action),
the length of time that the petitioner actually drove or has been driving on
permits, and driving record while on any permit; record
of performance while driving with an interlock device; driving history
in another state if licensed previously; any arrest
or implied consent suspension for boating or snowmobiling under the influence;
petitioner's alcohol/drug-related criminal record, as defined in Section
1001.410; whether the petitioner was incarcerated and participated in any
rehabilitative activity during incarceration; whether the petitioner complied
with the terms and conditions of probation or parole; and psychiatric
reports in which the evidence shows that petitioner is suffering or has
suffered from a psychiatric disorder that might affect the ability to operate a
motor vehicle in a safe and responsible manner. The
fact that a petitioner was not cited or arrested for, or convicted of, any
traffic offense while driving on a probationary permit does not, in and of itself,
entitle the petitioner to reinstatement.
d) Investigative Evaluation
1) A petitioner will be required to complete and submit an
investigative alcohol drug evaluation as part of the Secretary's investigative
process, where the evidence, including the petitioner's driving record,
indicates that:
A) the
current loss of driving privileges is not related to a DUI arrest/disposition
yet:
i) the
petitioner's/respondent's driving record contains, or other evidence indicates
the existence of, a prior DUI disposition or any other conviction or loss of
driving privileges that was alcohol/drug related within the last 5 years (as of
the date of the hearing) for which the petitioner/respondent did not or was not
required to submit to the Secretary of State an alcohol/drug evaluation to
obtain driving privileges;
ii) there is credible evidence that the petitioner
had any arrest or implied consent suspension for boating or snowmobiling under
the influence within the last 5 years (as of the date of the hearing);
iii) the petitioner has an alcohol/drug-related
criminal conviction within the last 5 years (as of the date of the hearing), as
defined in Section 1001.410; or
iv) the facts of the current loss of driving
privileges indicate the use or potential use of alcoholic beverages or other
drugs at a time when the offender was under the age of 21 years and within the
last 5 years (as of the date of the hearing); or
B) the petitioner/respondent may be a user of alcohol or any other
drug to a degree that renders that person incapable of safely driving a motor
vehicle. (See Section IVC 6-103.4.)
2) The
petitioner will be required to complete any recommended rehabilitative activity
or provide a waiver. Furthermore, if any
rehabilitative (i.e., a driver risk education course, intervention, or
treatment for alcohol/drug abuse)
activity is recommended, then the petitioner
must submit an update evaluation, as provided in this Subpart D, until the
petitioner's driving privileges are reinstated. An update evaluation is required
even if the waiver is based upon the fact that the petitioner completed
treatment prior to the date that the investigative evaluation was conducted.
3) The
requirements of this subsection (d) also apply to an investigative evaluation
that is submitted by a petitioner voluntarily.
4) The
Department reserves the discretion to waive the requirement of the
investigative evaluation if the current criminal offense is a misdemeanor and
there is no other evidence of a current alcohol or drug problem.
e) Examination. A petitioner will be required to submit to a
driver's license examination prior to the reinstatement of driving privileges
if the test has not been successfully completed in the preceding 24 months.
f) Public Safety and Welfare. In case of either subsection (b)
or (c), the public welfare and safety must not be endangered by the
reinstatement of the petitioner's driving privileges. The petitioner, if
restored to full driving privileges, must operate a motor vehicle safely so as
not to be a danger to the petitioner or other drivers on the road. The mere
passage of time since the date of revocation is not sufficient evidence.
g) Eligibility; New Residents of Illinois. A hearing for
reinstatement will not be conducted at any time before the prescribed date of
eligibility. The Secretary of State will not issue a
driver's license to a new resident of Illinois while driving privileges are
revoked in another jurisdiction, pursuant to IVC Section 6‑103.1, unless
petitioner meets the requirements set forth in Section 1001.420(1), pursuant to
IVC Section 6-103.1.
h) Ticket
Pending. The driving privileges of a petitioner shall not be reinstated while
any moving offense is pending against a petitioner in any court of this or any
other state unless the pending citation or citations are also the only cause of
the current loss of driving privileges.
i) 75% Rule. A petitioner who was issued a probationary permit
or any RDP, who otherwise becomes eligible for full reinstatement, will not be
considered for reinstatement of driving privileges, unless the petitioner has
successfully completed driving on the initial permit for 75% of its length. Probationary
permits will be issued for any lawful purpose 12 hours per day, 6 days per
week, within a 200-mile radius for up to one year in length. However, a
petitioner may appeal to the Director of the Department for a waiver of this
provision when exigent circumstances warrant consideration of a waiver. An
exigent circumstance is one that would prevent the petitioner from ever being
able to meet this requirement, such as moving out of the State.
j) Decision. The Director or a designee shall make the final
decision, on each petition, on behalf of the Secretary. If relief was sought
at a formal hearing, petitioners will receive a copy of the hearing officer's
Findings of Fact, Conclusions of Law, and Recommendations, and the Secretary's
Order.
k) Out-of-state Petitioners – Never Resided in Illinois.
Notwithstanding any other provisions of this Subpart, the following provisions
for reinstatement of the Illinois driving privileges for certain out-of-state
petitioners shall apply:
1) Out-of-state petitioners whose driving privileges are revoked
in Illinois shall be granted reinstatement of Illinois driving privileges upon
a showing that:
A) the petitioner is not currently a resident of the State of
Illinois by producing a government-issued Driver's License or Identification
Card from another state;
B) at the time of arrest or arrests in Illinois for the violations
that led to the revocation of the Illinois driving privileges, the petitioner
was not licensed to drive in Illinois, was a resident of a state or
jurisdiction other than Illinois, and continues to reside in that or any other
state or jurisdiction;
C) the petitioner is not currently seeking to reside in or be
licensed to drive in the State of Illinois;
D) the state of residence and/or licensure of the petitioner at
the time of the Illinois arrests did not take action, or took action against
the driving privileges of the petitioner based upon the Illinois arrest and the
action has terminated;
E) but
for the revocation in Illinois, the petitioner is not prohibited from obtaining
driving privileges in any state or jurisdiction other than Illinois. The
Secretary reserves the discretion to check the status of the petitioner's
driving privileges in other states, as reported by the PDPS; and
F) the petitioner has paid all necessary fees due the State of
Illinois.
2) Out-of-state petitioners granted reinstatement under the
provisions of this subsection (k), who subsequently apply for Illinois driving
privileges and a driver's license within 3 years after the date of
reinstatement in Illinois, shall be required to have an administrative hearing
and meet all of the applicable requirements of this Subpart prior to the
issuance of any Illinois driving privileges and a driver's license.
l) Driving
Privileges of Out-of-State Petitioners Revoked for Life. Notwithstanding any
other provisions of this Subpart, the following provisions for the termination
of a lifetime revocation of Illinois driving privileges for certain
out-of-state petitioners shall apply:
1) Out-of-state
petitioners seeking termination of a lifetime revocation will be required to
have an in-person hearing in Illinois, unless the hearing officer determines
that there are material extenuating circumstances that prohibit the petitioner
from attending an in-person hearing. Material extenuating circumstances do not
include inconvenience or monetary considerations. In-person hearings require
the petitioner to be physically present and do not include telephonic hearings
but do include real-time audio and visual internet hearings.
2) Out-of-state
petitioners whose driving privileges are revoked in Illinois for life shall be
granted termination of the lifetime revocation upon a showing that:
A) he or she is not
currently a resident of the State of Illinois;
B) the
petitioner is not currently seeking to reside in or be licensed to drive in the
State of Illinois;
C) more
than 10 years has elapsed since the date of the most recent revocation;
D) the
petitioner meets all requirements set forth in Section 1001.440; and
E) the
petitioner has paid all necessary fees due to the State of Illinois.
3) Out-of-state
petitioners whose Illinois lifetime revocation has been terminated under the
provisions of this subsection (l) and who subsequently become an Illinois
resident again shall have the lifetime revocation reinstated. The petitioner
may apply for an RDP pursuant to IVC Section 6-205(c)(1.5) or 6-206(c)(3)(F).
m) Revocations
for Reckless Homicide and Aggravated DUI Involving a Fatality. A petitioner
who has an open revocation for reckless homicide or aggravated driving under
the influence that involved a fatality must submit, with the petition for
driving relief, either a copy of the Order of the circuit court that states the
sentence received upon conviction, certified by the Clerk of the Court, or a
document from the Department of Corrections that reflects: the offense for
which the petitioner was imprisoned; the date of release from imprisonment; and
the terms of release or parole. For the purpose of determining a petitioner's
eligibility for reinstatement pursuant to IVC Section 6-208(b)1, the date of
release from imprisonment refers to the imprisonment on the conviction for the
offense and does not include release from imprisonment for a violation of
parole or probation. It is the responsibility of the petitioner to provide
documentation that clearly reflects the date of release from imprisonment.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.440 PROVISIONS FOR ALCOHOL AND DRUG RELATED REVOCATIONS, SUSPENSIONS, AND CANCELLATIONS
Section 1001.440 Provisions for Alcohol and Drug Related
Revocations, Suspensions, and Cancellations
a) Documents/Evidence
Required. Except as provided in subsection (a)(1), in any application for
reinstatement, an RDP, or the termination of an order of cancellation at a show
cause hearing, all petitioners must submit an alcohol and drug evaluation and,
where required, evidence of successful completion of an alcohol and
drug-related driver risk education course and/or evidence of successful completion
of early intervention, treatment or proof of adequate rehabilitative progress.
These requirements apply to MDDP offenders whose permits are cancelled and who
apply for an RDP pursuant to IVC Section 6-206.1(l) and Section 1001.444(a) of
this Part.
1) An
alcohol and drug evaluation and the evidence of successful completion of early
intervention or treatment submitted by a resident of Illinois must have been
conducted by an individual or an agency licensed by DSUPR. An alcohol or
drug-related driver risk education course completed by an Illinois resident
must have been provided by an individual or agency licensed by DSUPR. (See 77
Ill. Adm. Code 2060.201.) Exceptions to these requirements will be allowed in
the following cases:
A) If the petitioner is currently and has been temporarily
residing outside the State of Illinois, then the updated
evaluation, early intervention, treatment, and driver risk education course may
be provided by an individual or agency accredited by the state in which the
individual or agency operates;
B) If the petitioner currently resides in Illinois but received
treatment for alcohol or drug abuse or dependence from a treatment program
located outside the State of Illinois that has been appropriately accredited by
the state in which it operates, then the petitioner
may document the successful completion of that treatment in the manner provided
by subsection (m). However, the petitioner's evaluation and driver risk
education course must be provided by an individual or agency licensed by DSUPR;
or
C) If the petitioner successfully completed, after the most recent
arrest for DUI, a High Risk treatment program provided by an individual or
agency licensed by DSUPR.
2) Choice
of Programs. The choice of these programs is within the discretion of the
petitioner. The evidence submitted must be printed, although the evaluator may
testify at any hearing.
3) Evaluation
Standards. The alcohol and drug evaluation (Uniform Report), as defined in
Section 1001.410, must conform to all current standards for an evaluation set
by DSUPR, where applicable, and/or to all current Secretary of State
requirements set forth in this Subpart D. (See 77 Ill. Adm. Code 2060.503.)
The evaluation must be signed and dated by both petitioner and evaluator. The
evaluation must include a recitation of: the petitioner's alcohol/drug use
history, from first use to present use; all DUI
dispositions, as defined in Section 1001.410, including any out-of-state DUI
disposition, regardless of whether the offense has been recorded to the
offender's Illinois driving record; any arrests or implied consent suspensions
for boating or snowmobiling under the influence that occurred within the last 5
years (as of the date of the hearing); a referral to early intervention or
treatment, or a referral to a treatment provider for the purpose of conducting
a Treatment Needs Assessment (see Section 1001.440(b)(7)); and the petitioner's
alcohol/drug‑related criminal convictions, as defined in Section 1001.410.
The alcohol/drug use history must be recited in either the body of the
evaluation or an attachment to the evaluation. The attachment must include the
evaluator's signature, the date it was composed, and the name of the agency or
program that is providing the evaluation.
4) Driver
Risk Education Course. The alcohol and drug-related driver risk education
course must, at a minimum, conform to the standards for alcohol/drug driver
risk education courses set by DSUPR. (See 77 Ill. Adm. Code 2060.505.) Any
alcohol or drug related driver risk education course required by this Part must
be completed after the date of the most recent arrest for DUI, BUI or SUI.
5) Evaluation Must Be Current. The alcohol and drug evaluation
must be current, which is defined as having been completed within 6 months
prior to the date of the hearing.
A) Update Evaluation. An update evaluation shall be conducted
only by means of an in-person interview and only by the same program that
conducted the original evaluation. Exceptions to the latter requirement will
be allowed under the following circumstances:
i) Transfer of File. If the petitioner's evaluation or treatment file or copies of all evaluation or treatment file material are
transferred to another evaluation or treatment
program that prepares the update. The program that conducts the update evaluation
should explain, either in a separate cover letter or in the body of the update
evaluation, how, when and why the petitioner's file was transferred to it. The
transfer will be considered acceptable only if the original evaluating program
can no longer provide evaluation services for reasons such as a suspended or
revoked license or voluntarily terminating evaluation business operations, or if an individual service provider leaves the program
that conducted the original Uniform Report and the petitioner wishes to
continue receiving services from that individual, or if the petitioner
relocates to another part of the state. In the latter case, the petitioner
carries the burden of proving relocation at least 50 miles from the original
service provider's nearest location. When transferring a file, the
sending program shall not allow it to be delivered by the petitioner to the
receiving agency. If an update cannot be obtained by reviewing the original
case file information, another original evaluation must be submitted.
ii) Treatment
Provider Who Can Perform Update Evaluations. If the petitioner completes
primary treatment recommended as a result of the most recent alcohol and drug
evaluation, the program providing the treatment may prepare any subsequent
update evaluation from its own case file information without obtaining the
information from the evaluating program that made the treatment recommendation.
Furthermore, a chronological alcohol/drug use history may
be prepared by the program that provided the treatment, when one is
requested by the petitioner, the Secretary or a hearing officer in a decision
entered as a result of a formal or informal hearing, to be submitted as part of the petitioner's evidence at the next
hearing. A treatment provider may not conduct the update evaluation if
the only service it provided was early intervention or continuing care services,
or if it waives treatment, unless the petitioner's case file has been
transferred to it.
B) Update
Evaluation – Content. An Illinois and out-of-state update evaluation shall
report, at a minimum and when applicable, the following: a description of
alcohol/drug use and/or abuse covering the time since the last evaluation or
update; the facts of any arrest or citation for a traffic or criminal offense
that is, in any way, alcohol/drug-related; any impairment of significant life
areas, any symptoms of alcohol/drug abuse or alcohol/drug-related problems
since the last evaluation or update; any current significant physical, medical,
emotional/mental health problem and participation in, and/or completion of, any
early intervention or treatment for that problem; whether the petitioner is
taking any prescription medication that, when taken alone or in combination
with alcohol or other drugs, might impair driving ability; any significant life
style changes since the previous evaluation; the petitioner's current peer
group and most important recreational activities; the petitioner's intent
regarding future of alcohol/drug use; if the petitioner is classified as High
Risk-Dependent, identification of the petitioner's support group and the
evaluator's assessment of its effectiveness and sufficiency; a response to the
issues raised at the petitioner's most recent hearing for driving relief and an
assessment of whether additional treatment is warranted; the evaluator's
previous and current alcohol/drug-use classification of the petitioner; any
current recommendations and the rationale for those recommendations; and an
indication of whether the petitioner has completed all prior recommendations. If the petitioner's Uniform Report did not include the alcohol/drug use history required by
subsection (a)(4), then it may be provided in an update evaluation. The
update evaluation must be corroborated by an interview with a family member or
significant other. The information obtained must be summarized and the
evaluator should indicate whether it corroborates the data provided by the
petitioner. The update evaluation must be printed, on a form provided by the
Department, and verified by the evaluator. (See subsection (a)(1).)
i) Any
update evaluation that reclassifies a petitioner to or within a Moderate,
Significant or High Risk classification shall include a referral to a treatment
provider for the purpose of determining the need, if any, for additional
rehabilitative activity. Any waiver of additional rehabilitative activity by
the treatment provider must be in writing and include the rationale for the
waiver. Any recommendation for additional rehabilitative activity must be
complied with before relief will be granted.
ii) A
petitioner may not submit an update evaluation if the Uniform Report being
updated does not discuss the most recent DUI disposition. In such case the
petitioner must submit a Uniform Report.
iii) An
update evaluation may not reclassify a petitioner from a previous
classification unless the evaluator believes that the previous classification
was improper or in error and justifies and explains in detail why the previous
classification was improper or in error and why the new classification is
proper and appropriate.
C) Investigative Evaluation − Content. An Illinois and
Out-of-State investigative alcohol and drug evaluation shall report, at a
minimum and when applicable, the following: a complete alcohol and drug use
history, from first use to present use, including a
recitation of any symptoms of alcohol/drug abuse or alcohol/drug‑related
problems experienced by the petitioner throughout the petitioner's alcohol/drug
use history; whether there is any history of alcoholism or drug addiction in
the petitioner's immediate family; whether the petitioner has a history of
treatment for alcohol/drug abuse; any current significant physical, medical,
emotional/mental health problem and participation in, and/or completion of, any
treatment for that problem; whether the petitioner is taking any prescription
medication that, when taken alone or in combination with alcohol or other
drugs, might impair driving ability; a response to the issues raised at the
petitioner's most recent hearing for driving relief and an assessment of
whether additional treatment is warranted; a history of alcohol and
drug-related driving, boating, snowmobiling, and criminal offenses (including all DUI dispositions, regardless of where the
offense occurred or whether it has been recorded to the offender's Illinois
driving record); a clinical impression of what the evaluation data
indicates and the rationale for that conclusion; any recommendations and the
rationale for such recommendations. The evaluation must be corroborated by an
interview with a significant other and by the administration of an objective
test. The information must be summarized and the evaluator should indicate
whether it corroborates the data provided by the petitioner. The evaluation
must be printed, on a form provided by the Department, and verified by the
evaluator. The program that completes the evaluation must meet the same
standards as programs qualified to prepare Uniform Reports. (See subsection
(a)(1).)
D) Circumstances
When an Update of an Investigative Evaluation is Required. If the evaluator
recommends any rehabilitative activity after conducting an Investigative
Evaluation, the petitioner must submit an update evaluation, as provided in
this Subpart D, until the petitioner's driving privileges are reinstated. If
the evaluator concludes that the petitioner does not need any rehabilitative
activity (i.e., a driver risk education course, early intervention, or treatment
for alcohol/drug abuse), and the
Secretary accepts this conclusion, then the petitioner is not required to
submit an update evaluation at future hearings (assuming that there are no
intervening alcohol/drug-related arrests or
incidents that might cause the Secretary to question this conclusion).
E) Circumstances
When an Update Evaluation is Not Required.
i) Petitioners
classified at High Risk Dependent who have driven successfully on a restricted
driving permit for at least 3 years after submitting an original evaluation are
not required to provide an update evaluation if:
• the
petitioner files for an extension or revision of the RDP, an additional RDP, or
for another hearing during the term of the current RDP; or
• the
current RDP is expired for no more than 30 days at the time the petitioner
files for an extension or revision of the RDP, an additional RDP, or for
another hearing. All other documentation required by this Subpart D must be
submitted.
ii) For purposes of this subsection (a)(6)(F), a petitioner is
not deemed to have successfully driven on a restricted driving permit if the
petitioner is a BAIID permittee whose monitor reports reflect the use of
alcohol.
b) Burden of Proof. Before any driving relief will be granted,
the petitioner must prove by clear and convincing evidence: that the petitioner
does not have a current problem with alcohol or other drugs; that the
petitioner is a low or minimal risk to repeat past abusive behaviors and the
operation of a motor vehicle while under the influence of alcohol or other
drugs; and that the petitioner has complied with all other standards as
specified in this Subpart D. If the evidence establishes that the petitioner
has had an alcohol/drug problem, the petitioner must also prove that the
problem has been resolved. Notwithstanding the foregoing, the renewal of a
permit issued to a petitioner that is classified as High Risk Dependent shall
not be denied based on evidence including, but not limited to, BAIID
violations, that indicate a petitioner is not abstinent.
1) Minimal
Risk. Petitioners whose use of alcohol/drugs has been classified under this
Section as Minimal Risk must document successful completion of a 10 hour
alcohol/drug driver risk education course by submission of a document that
reflects the completion of the requirements contained in 77 Ill. Adm. Code
2060.505. The driver risk education course cannot be waived, except as
provided in subsection (a)(1)(C).
2) Moderate Risk. Petitioners whose use of alcohol/drugs has
been classified under this Section as Moderate Risk must document successful
completion of an alcohol/drug driver risk education course as specified in
subsection (b)(1) and the early intervention and any additional treatment
recommended by the evaluator or other qualified professional recommended on
referral by the evaluator. The driver risk education course cannot be waived,
except as provided in subsection (a)(1)(C). The early intervention and/or
treatment must be provided by an individual or agency licensed to provide those
services by DSUPR or the Illinois Department of Public Health, or an individual
therapist who is licensed as a private practitioner by the Illinois Department
of Financial and Professional Regulation-Division of Professional Regulation,
or an out-of-state individual therapist or agency properly licensed by the
state in which the therapist operates.
3) Significant
Risk. Petitioners whose use of alcohol/drugs has been classified under this Section
as Significant Risk must document successful completion of an alcohol/drug
driver risk education course as specified in subsection (b)(1) and the
treatment recommended by the evaluator or other qualified professional
recommended on referral by the evaluator. The driver risk education course
cannot be waived, except as provided in subsection (a)(1)(C). The treatment
must be provided by an individual or agency licensed to provide those
treatments by DSUPR or the Illinois Department of Public Health, or an
individual therapist who is licensed as a private practitioner by the Illinois
Department of Financial and Professional Regulation-Division of Professional
Regulation, or an out-of-state individual therapist or agency properly licensed
by the state in which the therapist operates.
4) High Risk Dependent. Petitioners classified under this
Section as High Risk Dependent must document abstinence as required in
subsection (e); the completion of treatment provided by a facility or
facilitator licensed by DSUPR or the Illinois Department of Public Health, an
individual therapist who is licensed as a private practitioner by the Illinois
Department of Financial and Professional Regulation-Division of Professional
Regulation, or an out-of-state individual therapist or agency properly licensed
by the state in which the therapist operates; the establishment of an ongoing
support/recovery program; and compliance with any additional recommendations of
the evaluator or treatment provider. Notwithstanding the foregoing, the renewal
of a permit issued to a petitioner that is classified as High Risk Dependent
shall not be denied based on BAIID violations that indicate the petitioner is
not abstinent.
5) High Risk Nondependent. Petitioners classified under this
Section as High Risk Nondependent must document: non-problematic use as
provided in subsection (f); treatment provided by a facility or facilitator
licensed by DSUPR or the Illinois Department of Public Health, an individual
therapist who is licensed as a private practitioner by the Illinois Department
of Financial and Professional Regulation-Division of Professional Regulation,
or an out-of-state individual therapist or agency properly licensed by the
state in which the therapist operates; compliance with any additional
recommendations of the evaluator or treatment provider, including abstinence;
and a detailed explanation by the treatment provider as to why dependency was
ruled out. The failure of a petitioner to submit the "detailed
explanation" is sufficient grounds, in and of itself, to deny the petition
for driving relief. The explanation should focus on the most recent offense.
6) Investigative
Evaluation. Petitioners who obtain an investigative alcohol/drug evaluation
must document the completion of any recommended intervention or treatment
provided by a facility or facilitator licensed by DSUPR or the Illinois
Department of Public Health, an individual therapist who is licensed as a
private practitioner by the Illinois Department of Financial and Professional
Regulation-Division of Professional Regulation, or an out-of-state individual
therapist or agency properly licensed by the state in which the therapist
operates. If found to be chemically dependent, then the petitioner must prove
abstinence as required in subsection (e) and the establishment of an ongoing
support/recovery program, and compliance with any additional recommendations of
the evaluator or treatment provider. Furthermore, if
rehabilitative activity (i.e., a driver risk education course, intervention, or
treatment for alcohol/drug abuse) is
recommended, then the petitioner must submit
an update evaluation, as provided in this Subpart D, until the petitioner's
driving privileges are reinstated.
7) Treatment Waiver Required – Documentation of Most Recent
Treatment. In the event that a treatment provider does not require an
individual classified Moderate, Significant or High Risk to complete at least
the minimum amount and type of early intervention or treatment specified by DSUPR,
the treatment provider must supply the Department with a detailed explanation
of the rationale for that decision. The driver risk education course cannot be
waived, except as provided in subsection (a)(1)(C). In the course of assessing
whether to waive early intervention or treatment, the treatment provider should
attempt to obtain documentation of a petitioner's most recent treatment
experience and incorporate the information in this assessment if: the
treatment provider contends that the petitioner's alcohol/drug use
classification should be changed to a lower risk classification, or the
documentation states that the petitioner's prognosis at the time of discharge
was guarded. The treatment provider should be prepared to explain the reasons
for not obtaining this documentation and to provide written verification that
the documentation is not available. The Secretary reserves the discretion to
reject a waiver of treatment if the hearing officer is able to articulate
specific reasons to doubt its validity.
8) Treatment
Needs Assessment Required; Documentation of Most Recent Treatment. Whenever a
service provider conducts and composes a
Uniform Report, it is required to refer the petitioner to a treatment provider
for an assessment of whether intervention or treatment for alcohol/drug abuse
is warranted, pursuant to DSUPR rules at 77 Ill. Adm. Code Section
2060.503(h). The petitioner must provide a Treatment Needs Assessment
whenever another Uniform Report is composed, regardless of whether the
petitioner successfully completed intervention or treatment after the previous
Uniform Report, in order to inform the Secretary whether additional
intervention or treatment is warranted as a result of the information obtained
during the course of the subsequent Uniform Report. The Treatment Needs
Assessment shall be composed on the treatment provider's letterhead stationery
or incorporated into the "Treatment Verification" form composed,
published and distributed by the Department. If composed on stationery, then
the Treatment Needs Assessment must be signed and dated by the counselor
responsible for the assessment.
A) The
Treatment Needs Assessment must be provided by a licensed treatment provider
regardless of whether the petitioner has committed any traffic or criminal
offense that mandates the composition of a Uniform Report.
B) In the
course of conducting the Treatment Needs Assessment, the treatment provider
should attempt to obtain documentation of a petitioner's most recent treatment
experience and incorporate the information in this assessment, along with the
petitioner's conduct since that treatment experience, in the provider's
findings and conclusions. The treatment provider should be prepared to explain
the reasons for not obtaining this documentation and to provide written
verification that the documentation is not available.
9) BAIID
Violations. BAIID violations that indicate the consumptions of alcohol shall
not serve as a sole basis for not renewing, cancelling or revoking a permit.
c) Rebuttable Presumption. The presence of more than one DUI
disposition on a petitioner's abstract shall create a rebuttable presumption
that the petitioner suffers from a current alcohol/drug problem and should,
therefore, be classified at least Significant Risk.
d) Evidence Considered. Evidence which shall be considered in
determining whether the petitioner has met the burden of proof and has overcome
the presumption of a current alcohol/drug problem includes, but is not limited
to, the following, where applicable:
1) The factors enumerated in Section 1001.430(c);
2) The similarity of circumstances between alcohol or
drug-related arrests;
3) Any property damage or personal injury caused by the
petitioner while driving under the influence;
4) Changes in life style and alcohol/drug use patterns following
alcohol/drug-related arrest, and the reasons for the change;
5) The chronological relationship of alcohol/drug-related
arrests;
6) Length of alcohol/drug abuse pattern;
7) Degree of self-acceptance of alcohol/drug problem;
8) Degree of involvement in or successful completion of prior
treatment/intervention recommendations following alcohol/drug related arrests
and in a support/recovery program;
9) Prior relapses from attempted abstinence, except that BAIID
violations that indicate the consumption of alcohol, shall not serve as the
sole basis for not renewing or cancelling a permit;
10) Identification, treatment and resolution of the cause of the
high risk behavior of any petitioner classified High Risk Nondependent;
11) The problems, pressures and/or external forces alleged to
have precipitated the petitioner's abuse of alcohol or other drugs on the
occasion of each alcohol/drug-related arrest, and the present status of the
same, particularly whether they have been satisfactorily resolved;
12) The petitioner's explanation for the multiple arrests and/or
convictions for offenses involving alcohol/drugs, particularly for allowing the
second and subsequent arrests/convictions to occur;
13) In out-of-state petitions, the evaluator's rationale for
classifying a petitioner with multiple DUI dispositions as a Minimal or
Moderate Risk. In these cases it is particularly important that the
evaluator's classification be based on complete and accurate information;
14) The petitioner's criminal history, particularly drug offenses
or offenses that in any way involved alcohol/drugs;
15) The petitioner's chemical test results of the petitioner's
blood, breath or urine from all previous arrests or all previous
alcohol/drug-related offenses (not just traffic offenses) in addition to the
chemical test results of the most recent arrest;
16) The extent to which, in terms of completeness and
thoroughness, a petitioner and service providers have addressed every issue
raised by the hearing officers in previous hearings;
17) It is particularly important that the evaluator's
classification be based on complete, accurate and consistent information,
especially all of the petitioner's DUI arrests and BAC test results. The
probative value of evaluations that deviate from this standard will be
diminished. The degree to which their probative value will be diminished will
depend upon the degree to which the evaluation deviates from this standard and
the standards imposed by DSUPR;
18) The petitioner's record of performance while driving with an
interlock device and record of compliance with the terms and conditions of the
breath alcohol ignition interlock device program or the monitoring device
driving permit program. A BAIID violation indicating consumption of alcohol may
not be the sole basis for denying driving relief;
19) Written
or verbal statements from members of the public, including crime victims as
defined in the Code of Criminal Procedure [725 ILCS 120/3] or family members of
victims of offenses committed by a petitioner, so long as the statement is
relevant to the issues at the hearing;
20) The service provider's clinical rationale or
justification for changing the classification of a petitioner's alcohol/drug use, or for giving a
classification that is different than that given in other evaluation or
treatment documents or by other service providers;
21) The
treatment provider's explanation for failing to obtain, when requested,
documentation of the petitioner's most recent treatment;
22) Whether
the petitioner has been incarcerated and was recently released after an
extended period of incarceration and whether the petitioner participated in any
rehabilitative activity during incarceration.
e) Documentation of Abstinence
1) Petitioners classified as High Risk Dependent, or any other
petitioner with a recommendation of abstinence by a DSUPR licensed evaluator or
treatment provider, must have a minimum of 12 consecutive months of documented
abstinence, except as provided in subsections (e)(3), (4) and (7), in regard to
opiate substitution, medical cannabis programs, and BAIID permittees. This
means that the petitioner must be abstinent from alcohol and all controlled
substances, legal and illegal, unless the drug is prescribed by a physician,
and regardless of whether alcohol or another drug was the petitioner's drug of
choice when using. Abstinence that occurs during a period of extended
incarceration is not favored, unless petitioner took proactive steps toward
rehabilitation while incarcerated, as it occurs in a controlled environment.
Documentation of abstinence must be received from at least 3 independent
sources. The sources should not be fellow members of a support group unless
those members have regular and frequent contact with the petitioner outside the
group meetings. The hearing officer shall determine the weight to be accorded
the documentation, taking into account the credibility of the source and the
totality of the evidence adduced at the hearing. Letters or witness testimony
establishing abstinence should contain, at a minimum, the following:
A) The person's relationship to petitioner (friend, family member,
fellow employee, etc.).
B) How
long the person has known the petitioner.
C) How often the person sees the petitioner (daily, weekly,
monthly, etc.).
D) How
long the person knows the petitioner has abstained.
E) Each letter must be dated and signed by its authors. All
letters must be submitted in their original form and should be dated no more
than 45 days prior to the hearing date. Telephone facsimiles and photocopies
of original letters will be admitted into evidence pending the submission of
the original within a reasonable number of days as determined by the presiding
hearing officer. The petitioner's failure to maintain strict compliance with
these requirements shall not be the sole basis for withdrawing from a hearing
or denying relief.
2) Petitioners who are classified as Significant Risk or High
Risk Non-Dependent and who are required by IVC Sections 6-205(a)(1.5) and
6-206(c)(3)(F) to prove 3 years of uninterrupted abstinence in order to obtain
an RDP may prove that this abstinence occurred during any period of time after
the most recent arrest for driving under the influence. Petitioners who are
classified as High Risk Dependent who are required to prove 3 years of
uninterrupted abstinence by IVC Sections 6-205(a)(1.5) and 6-206(c)(3)(F) in
order to obtain an RDP must prove that their period of abstinence began after
the most recent arrest for driving under the influence. They must also prove
that they have been abstinent for the 3 years immediately prior to their
hearing. Proof of abstinence must comply with the requirements of subsection
(e)(1).
3) Waivers
of the rule requiring 12 months of abstinence are discretionary when
considering an RDP but shall not be granted unless the petitioner proves at
least 6 months continuous abstinence at the time of the hearing.
4) Opiate
Substitution Programs. Petitioners who are able to document that they are
involved in a long-term opiate substitution program, such as methadone
maintenance, are not required to prove abstinence from the substitute drug that
has been prescribed to them in order to obtain driving relief. Rather, they
must prove that they have been stable in the program for at least one year. The
petitioner's documentation must include an Opiate Substitution form completed
by the petitioner, the petitioner's primary or reviewing physician, and the
petitioner's primary substance abuse provider or evaluator. The petitioner
must satisfy the other requirements of this Subpart D, including abstinence
from alcohol and all other drugs, in order to obtain driving relief.
5) Use
of Medical Cannabis. Petitioners who are able to document that a physician has
recommended the use of what is defined and authorized as "medical
cannabis" in the Compassionate Use of Medical Cannabis Program Act are not
required to prove abstinence from the cannabis that has been recommended in
order to obtain driving relief. Rather, they must prove that they are stable.
Petitioners who are classified as high-risk dependent
and who have been diagnosed as dependent on cannabis must prove stability in
the program for a minimum of 6 months before an RDP may be issued and a minimum
of 12 months before reinstatement. The petitioner's documentation must
include a Medical Cannabis form completed by the petitioner, the petitioner's
primary or reviewing physician, and the petitioner's primary substance abuse
provider or evaluator. The petitioner must satisfy the other requirements of
this Subpart D, including abstinence from alcohol and all other drugs, in order
to obtain driving relief.
6) Use of Prescribed Opiate Medication. Petitioners who are
able to document that a physician has prescribed opiate medication are not
required to prove abstinence from the prescribed opiates in order to obtain
driving relief. Rather, they must prove that they are stable on the prescribed
opiate medication. Petitioners who are classified as high-risk dependent and
who have been diagnosed as dependent on the prescribed opiate must prove
stability in the program for a minimum of 6 months before an RDP may be issued
and a minimum of 12 months before granted reinstatement. The petitioner's
documentation must include an Opiate Medication form completed by the
petitioner, the petitioner's primary or reviewing physician, and the
petitioner's primary substance abuse provider or evaluator. The petitioner must
satisfy the other requirements of this Subpart D, including abstinence from
alcohol and all other drugs, in order to obtain driving relief.
7) Consumption
of "Near-Alcoholic" Beverages. The consumption of "near‑alcoholic"
beverages does not violate the rule requiring abstinence. However, this
conduct is a valid subject to be considered in determining the ultimate issue
of whether the petitioner has met the burden of proving that the petitioner
will be a safe and responsible driver. The Secretary will consider the
petitioner's motivation for consuming near-alcoholic beverages, the
circumstances under which they are consumed (when, where, why, with whom and
how often), the strength of the petitioner's support system, the petitioner's
degree of acceptance of the alcoholism/chemical dependency, and whether
near-alcoholic beverages were ever used in the past (and whether this use
occurred before or after the commission of a DUI). The petitioner carries the
burden of proving that the use of near-alcoholic beverages is not a matter of
concern.
8) When
considering the renewal of an RDP for a petitioner classified as High Risk
Dependent who currently utilizes a BAIID, the petitioner shall not be denied
relief solely because the petitioner has failed to maintain abstinence.
f) Documentation of Non-Problematic Use
1) Petitioners classified as High Risk Nondependent must
demonstrate at least 12 consecutive months of non-problematic alcohol use, or
abstinence, and abstinence from the use of illegal drugs. This evidence must
be submitted from at least 3 independent sources and generally comply with the
standards set forth in subsection (e).
2) Waivers
are discretionary when considering an RDP, but shall not be granted unless the
petitioner demonstrates at least 6 months of non-problematic alcohol use, or
abstinence, and abstinence from the use of illegal drugs.
g) Documentation of Support/Recovery Program
1) If the petitioner has been attending a support/recovery
program, the petitioner must present at least 3 dated and signed letters or
witness testimony from fellow support/recovery program members documenting at a
minimum the following:
A) How
long the person has known the petitioner;
B) How long the person knows that the petitioner has attended the
program;
C) How
often the petitioner attends the program.
2) The hearing officer shall determine the weight to be accorded
the documentation, taking into account the credibility of the source and the
totality of the evidence adduced at the hearing. Each letter must be dated and
signed by its authors. All letters must be submitted in their original form
and should be dated no more than 45 days prior to the hearing date. Telephone
facsimiles and photocopies of original letters will be admitted into evidence
pending the submission of the original within a reasonable number of days as
determined by the presiding hearing officer. The petitioner's failure to
maintain strict compliance with these requirements shall not be the sole basis
for withdrawing from a hearing or denying relief.
h) Internet Support/Recovery Programs. A petitioner's
participation in internet Alcoholics Anonymous, Narcotics Anonymous or other
support/recovery program "chat rooms" or any other support/recovery
program services available over the internet may be an acceptable substitute
for the regular attendance of meetings in person. The
factors to be considered by the hearing officer and the Secretary in evaluating
the effectiveness and probative value of this form of support include, but are
not limited to, the following: the petitioner's reasons for not attending
meetings in person; the petitioner's alcohol/drug
use history and history of
relapse; the length of the petitioner's abstinence at the time of the hearing;
the proximity of A.A. and N.A. meetings to the petitioner's residence and
workplace; the petitioner's physical/medical condition, as it affects the
ability to travel; the availability of public and private transportation to
meetings; whether the petitioner has attended meetings in person in the past,
and the length of that attendance; whether the petitioner's evaluator and
treatment provider are aware and approve of the petitioner's participation in
this form of support; the extent of the petitioner's knowledge of, commitment
to, and involvement in the program; the extent of the petitioner's knowledge of
the disease process of alcoholism/chemical dependence; the extent of the
petitioner's acceptance of the alcoholism/chemical dependence. The
participation in internet support/recovery program chat rooms is not favored by
the Secretary of State. Therefore, substantial documentation and testimony
regarding this method of support is required in order for the petitioner to
carry the burden of proof on this issue, including identification of the
specific websites that the petitioner uses and verification of the petitioner's
participation by chat room members.
i) Non-Traditional Support/Recovery Programs
1) If the petitioner's support/recovery program does not involve
a structured, organized, recognized program such as A.A. or N.A., the
petitioner is required to identify what that program is and explain how it
works and keeps petitioner abstinent. The petitioner is required to present
either witness testimony or written verification of the program from at least
three independent sources involved in the program. If the verification is in
the form of letters, those letters should be signed and dated. All such
evidence must contain, at a minimum, the following:
A) The person's relationship to the petitioner (friend, family
member, fellow employee, etc.);
B) How
long the person has known the petitioner;
C) How often the person sees the petitioner (daily, weekly,
monthly, etc.);
D) How the person is involved in the petitioner's recovery program
and what role the person plays in helping the petitioner abstain from
alcohol/drugs;
E) What changes the person has seen in the petitioner since
petitioner's abstinence.
2) The hearing officer shall determine the weight to be accorded
the documentation, taking into account the credibility of the source and the
totality of the evidence adduced at the hearing. Each letter must be dated and
signed by its authors. All letters must be submitted in their original form
and should be dated no more than 45 days prior to the hearing date. Telephone
facsimiles and photocopies of original letters will be admitted into evidence
pending the submission of the original within a reasonable number of days as
determined by the presiding hearing officer.
j) Support/Recovery
Program Sponsor. If the petitioner has a support/recovery program sponsor, a
letter should be obtained (or the testimony submitted) from the sponsor
documenting the data in subsection (g)(1). The purpose of a letter or the
testimony of an A.A. sponsor is to provide the Secretary with substantial
detail regarding the petitioner's progress and development in the A.A.
program. However, this letter or testimony can also be used to satisfy the
requirements of subsection (g). The submission of a letter from a petitioner's
sponsor is not mandatory, but is strongly recommended. A petitioner's failure
to submit a letter from the sponsor is not, by itself, a sufficient basis upon
which to deny driving relief.
k) RDP for Support/Recovery Program − Information
Required. In cases in which a petitioner seeks an RDP to allow driving to
support/recovery program meetings, the petitioner must provide specific
information identifying, at a minimum, the following:
1) The locations of the meetings the petitioner wishes to attend;
2) The days of the week when meetings are held at these
locations;
3) The hours of the day when these meetings are held.
l) Early Intervention − Information Required. If the
petitioner has undergone early intervention (Moderate Risk classification), the
petitioner must provide a narrative summary that includes, at a minimum, the
following:
1) The name, address and telephone number of the licensed service
provider;
2) The dates the petitioner began and completed early
intervention, as well as the number of days or hours the petitioner was
involved in the intervention process;
3) A summary discussion of the intervention provided and its
outcome, specifically, those issues that were addressed or explored and the
provider's perception of what the petitioner gained from the experience and the
petitioner's ability to avoid future development of alcohol problems;
4) The rationale for any modification in the early intervention
requirements specified by DSUPR;
5) The dated signature of the professional staff person providing
the early intervention information; and
6) The narrative summary shall be composed on the treatment
provider's letterhead stationery.
m) Treatment − Information Required. If the petitioner has
had alcohol or drug related treatment, the petitioner must provide the
information listed in this subsection (m). A petitioner is required only to
submit proof of the most recent primary treatment experience.
1) A narrative summary that includes, at a minimum:
A) The name, address and telephone number of treatment center;
B) The date the petitioner entered primary treatment and the date
the petitioner was discharged from treatment; the number of days or hours the
petitioner was involved in treatment; the admitting and discharge diagnosis;
C) The type of treatment received (e.g., outpatient, intensive
outpatient or inpatient treatment; individual or group therapy);
D) A clinical impression or prognosis of either a Moderate or
Significant Risk petitioner's ability to maintain a non-problematic pattern, or
a High Risk petitioner's ability to maintain a stable recovery where
applicable. Specifically, the treatment provider's perception of what the
petitioner gained from the treatment experience and whether the experience was
sufficient to substantially minimize the possibility of a recurrence of
alcohol/drug related problems;
E) Any recommendations for continuing care or follow-up support,
and an indication of the petitioner's participation, if applicable;
F) The rationale for any modification in the treatment
requirements specified by DSUPR;
G) The dated signature of the professional staff person providing
the treatment information.
2) Copies of the following documents required by DSUPR:
A) Individualized Treatment Plan. (See 77 Ill. Adm. Code
2060.421.)
B) Discharge Summary and Continuing Care Plan. (See 77 Ill. Adm.
Code 2060.427.)
3) A current status report regarding the petitioner's involvement
in continuing care. The Continuing Care Status Report must discuss the
petitioner's level of progress in completing follow-up activities outlined in
the Continuing Care Plan. It may be composed by either the evaluator or the
treatment provider, and shall be composed on the letterhead stationery of the
agency or individual who authored the report. If continuing care has been
completed, a final summary report must be provided that discusses the
petitioner's progress throughout the course of completing all follow-up
activities detailed in the Continuing Care Plan. If continuing care has been
determined to be unnecessary, a report must be provided that discusses the
clinical rationale for that decision. This waiver may be composed only by the
treatment provider.
4) The Department reserves the discretion to require a petitioner
to submit a Treatment Needs Assessment or a waiver of treatment as a
consequence of a petitioner being unable to provide documentation of
treatment. If the petitioner and the evaluator or treatment provider are
unable to provide the required information or treatment documents, they must
provide documentary evidence of their attempts to obtain the information and
the reason for its unavailability.
5) The information required in
subsection (m)(1) should be provided in the "Treatment Verification"
form composed, published and distributed to treatment providers as a courtesy
by the Department. However, a petitioner's failure to submit a Treatment
Verification form is not a sufficient basis, in and of itself, to deny driving
relief, so long as the information required in subsection (m)(1) is submitted
in some other format or in the other documents required to be submitted.
n) Evaluation Written for Court. If a petitioner presents an
alcohol/drug evaluation that was obtained for the purpose of being sentenced on
a DUI charge or some other traffic or criminal offense, that evaluation must
meet the requirements of this Section in order to be accepted by the Secretary
of State.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.441 PROCEDURES FOR BREATH ALCOHOL IGNITION INTERLOCK DEVICE CONDITIONED RDPS
Section 1001.441 Procedures
for Breath Alcohol Ignition Interlock Device Conditioned RDPs
a) BAIID Required for RDP; Fee Required
1) The issuance of RDPs to a BAIID petitioner shall be
conditioned upon the use of a Breath Alcohol Ignition Interlock Device (BAIID),
as required by IVC Sections 6-205, 6-206 and/or 11-501.01. As provided in
these Sections, a BAIID petitioner must pay a non-refundable fee of $30 per
month on an annual basis, for a total annual payment of $360. This total
annual payment must be paid in advance and prior to the issuance of any
permit. Payment must be submitted in the form of a money order, check, or a
credit card charge (with a pre-approved card), made payable to the Secretary of
State.
2) A BAIID petitioner who is renewing an RDP and who also is
eligible for the reinstatement of driving privileges less than 12 months from
the date of the expiration of the current RDP at the time the petitioner renews
the permit shall not be required to make an annual payment. If the petitioner
has been scheduled for a formal hearing on a petition for reinstatement at the
time of renewal, then petitioner shall pay the above-referenced fee in an
amount equal to the number of months between the date of renewal and date of
the hearing, plus an additional 3 months (not to exceed 12 months), times $30.
If the petitioner does not have a formal hearing on a petition for
reinstatement scheduled at the time of renewal, then the fee shall be paid for
9 months. If, however, the petitioner is denied reinstatement, then the
petitioner must resume payment on an annual basis.
b) Notification of BAIID Requirements. The Secretary shall
notify any BAIID petitioner who requests a hearing of the procedures for
obtaining a BAIID and the BAIID requirements. Notification may be accomplished
in one of the following ways, though not limited thereto: informal hearing
officer; phone contact; written notification, or by electronic mail.
c) Type of Hearing Required. All hearings involving a BAIID
petitioner seeking driving relief shall be formal hearings, except renewal of a
RDP when the petitioner had no BAIID violations or if a monitor report
indicated a BAIID violation had occurred, but the petitioner submitted an
explanation to the BAIID Division that reasonably assured the Division that no
violation had occurred may be done at an informal hearing. Any hearing
involving a BAIID petitioner shall be conducted as any other hearing under this
Part and all other applicable standards shall apply.
d) Petitioner Must Meet Requirements of Subpart D. The Secretary
shall issue an RDP to a BAIID petitioner if, through the hearing process, the
petitioner is determined to meet all of the requirements of this Subpart D and
installs and utilizes a BAIID in all motor vehicles operated, by the BAIID
petitioner and, where applicable, all motor vehicles owned by the BAIID
petitioner as required by the RDP issued under this Subpart D. A BAIID
permittee who does not meet the requirements of Subpart D at the time of
renewal as a result of BAIID violations incurred during the monitoring period
may only be renewed for a maximum of 12 months. The petitioner must come into
compliance with all provisions of Subpart D during that 12-month renewal
period. Failure to come into compliance with Subpart D will result in denial
of renewal and for BMO permittees, restart the 1,826-day requirement in Sec.
1001.443. BAIIDs shall not be installed on, nor shall BAIID permittees operate
motorcycles, motor driven cycles or commercial motor vehicles requiring a
commercial driver's license.
e) Hearing Officer's Responsibilities; Petitioner's
Responsibilities. Prior to the taking of evidence at the hearing:
1) The hearing officer shall ensure that the BAIID petitioner
understands: all of the provisions and requirements of receiving a BAIID
permit; that to obtain an RDP the BAIID petitioner must minimally meet all of
the requirements of Section 1001.440 and install and utilize the BAIID; that a
BAIID petitioner's agreement to install a BAIID or willingness to comply with
the BAIID requirements does not guarantee issuance of an RDP; and that all
costs associated with the BAIID are the responsibility of the BAIID petitioner;
and
2) The BAIID petitioner shall advise the hearing officer that the
petitioner understands all of the provisions and conditions of the BAIID
requirements and whether the petitioner agrees to comply with the BAIID
requirements. If the BAIID petitioner is unwilling to use the BAIID, or comply
with this Section, the petitioner shall be advised that an RDP cannot be
granted.
f) Decision. After the hearing, the hearing officer shall
consider the evidence and the relief requested and make a recommendation as in
any other hearing under this Part.
1) If the hearing officer does not determine that the relief
requested should be granted, an order denying relief shall be prepared.
2) If the hearing officer determines that an RDP should be
granted, an order granting an RDP shall be prepared with the additional
requirement that the RDP is conditioned upon the installation and continued use
of a BAIID . All RDPs issued under this Section shall require continued use of
the BAIID until the driving privileges of the petitioner are reinstated.
g) Installation of BAIID. Upon the issuance of an RDP under this
Section, the Secretary shall make available a list of certified BAIID providers
to the BAIID permittee. In addition to the other requirements under this Part,
the BAIID permittee may operate the vehicle for 14 days from the issuance of
the RDP without a BAIID installed, solely for the purpose of taking the vehicle
to a BAIID provider or installer for installation of a BAIID. The permittee
must be the individual who takes the vehicle to the installer to have the BAIID
installed, and must have a reference image taken by the installer at the time
of installation. Within 7 days from the date of the installation of the BAIID,
the installer or BAIID provider must notify the Secretary that a BAIID has been
installed in the vehicles designated by the BAIID permittee. Proof of
installation shall be by such means as determined by the Secretary from the
installer or BAIID provider. Failure to comply with these requirements will
result in the denial of driving relief and the cancellation of any RDP issued.
h) Petitioner's Responsibilities – Driving with a BAIID. Any
BAIID petitioner receiving an RDP under this Section must comply with the
following requirements:
1) Operate only vehicles with an installed, operating BAIID
certified by the Secretary whether the vehicle is owned, rented, leased,
loaned, or otherwise in the possession of the BAIID permittee as required by
the RDP issued under this Section.
2) Except when a BAIID has been installed that may be read remotely,
take the vehicle with the BAIID installed to the BAIID provider or installer or
send the appropriate portion of the BAIID to the BAIID provider or installer
within the first 30 days for an initial monitor report to help the BAIID
permittee learn how to correctly use the BAIID, and thereafter not longer than
every 60 days for the purposes of calibration and having a monitor report of
the BAIID's activity prepared and sent to the Secretary by the BAIID provider
or installer.
3) If a
BAIID has been installed that permits the BAIID permittee to mail in a portion
of the BAIID to be read and calibrated, or that allows the BAIID to be read
remotely, that BAIID permittee shall be required to bring the vehicle into a
BAIID installation site at least once every 6 months so that the BAIID and all
wiring and connections related to the BAIID may be inspected for signs of
tampering or circumvention.
4) Within 5 working days after any service or inspection
notification, take the vehicle with the BAIID installed to the BAIID provider
or installer or send the appropriate portion of the BAIID to the BAIID provider
or installer, as instructed, for a monitor report.
5) Maintain a journal of events recording unsuccessful attempts
to start the vehicle, failures to successfully complete a running retest, any
problems with the BAIID and the name of the driver operating the vehicle at the
time of the event. If BAIIDs have been installed on multiple vehicles pursuant
to Section 1001.443, a separate journal must be kept for each vehicle,
recording unsuccessful attempts to start the vehicle, failures to successfully
complete a running retest, any problems with the BAIID, and the name of the
driver operating the vehicle at the time of the event.
6) Ensure
that the BAIID camera is aimed, and the person using the BAIID is situated, so
that the camera captures a clear and accurate image of the individual blowing
into the BAIID, including a sufficiently wide angle that it will be possible to
determine whether the individual blowing into the BAIID is seated in the
driver's seat and whether a circumvention device has been inserted into the
mouthpiece of the BAIID.
7) Shall not have a BAIID removed or uninstalled from the BAIID
permittee's vehicle prior to notifying the Secretary and surrendering the RDP
to the Secretary or the Secretary's designee.
i) Review of Monitor Reports; Sanctions for Failure to Comply.
Upon receipt or nonreceipt of monitor reports, the Secretary shall review them
and take the action specified in this subsection (i). Failure of the BAIID
permittee to comply with the requirements of this Subpart D shall be made part
of the BAIID permittee's record of performance to be considered at future
formal hearings.
1) For any BAIID permittee whose monitor reports show 10 or more
unsuccessful attempts to start the vehicle, or a failure to successfully
complete a running retest, during the initial monitor period, the Secretary
shall send a warning letter to the BAIID permittee indicating that future
unsuccessful attempts to start the vehicle or failure to successfully complete
a running retest will result in the Secretary sending a letter to the BAIID
permittee asking for an explanation of the unsuccessful attempts to start the
vehicle or the failure to successfully complete a running retest;
2) For any BAIID permittee whose monitor reports show 10 or more
unsuccessful attempts to start the vehicle after the initial monitor report
period, the Secretary shall send the BAIID permittee a letter asking for an
explanation of the unsuccessful attempts to start the vehicle. If a response
is received within 21 days after the date of the Secretary's letter and it
reasonably assures the Secretary that no violation occurred, no further action will
be taken. If a response is not received within 21 days or does not reasonably
assure the Secretary, the failure to comply will be made part of the BAIID
permittee's record of performance;
3) For any BAIID permittee whose monitor reports show a failure
to successfully complete a running retest, after the initial monitor report
period, the Secretary shall send the BAIID permittee a letter asking for an
explanation of the failure to successfully complete a running retest. If a
response is received within 21 days after the date of the Secretary's letter
and it reasonably assures the Secretary that no violation occurred, no further
action will be taken. If a response is not received within 21 days or does not
reasonably assure the Secretary, the failure to comply will be made part of the
BAIID permittee's record of performance;
4) For any BAIID permittee whose monitor reports show a BrAC
reading of 0.05 or more or a pattern of BrAC readings consistent with the use
of alcoholic beverages, regardless of any other provision contained in this
Section, there shall arise a rebuttable presumption that the BAIID permittee
consumed alcoholic beverages. In every case, the Secretary shall send a letter
asking for an explanation of the BrAC reading or the pattern of BrAC readings
consistent with the use of alcoholic beverages. If a response is received
within 21 days after the date of the Secretary's letter and it reasonably
assures the Secretary that the BAIID permittee did not consume alcoholic
beverages, no further action will be taken. If a response from a BAIID
permittee is not received within 21 days or does not reasonably assure the
Secretary, the failure to comply will be made part of the BAIID permittee's
record of performance to be considered by the hearing officer at the next
hearing;
5) For any BAIID permittee who fails a running retest, or fails
to take a running retest, the Secretary shall send the BAIID permittee a letter
asking for an explanation of the incident. If a response is received within 21
days after the date of the Secretary's letter and it reasonably assures the
Secretary that no violation occurred, no further action will be taken. If a
response is not received within 21 days or does not reasonably assure the
Secretary, the failure to comply will be made part of the BAIID permittee's
record of performance;
6) For any BAIID permittee whose initial monitor report or
subsequent monitor reports show any tampering with or unauthorized
circumvention of the BAIID, or if physical inspection by an installer shows any
tampering with or unauthorized circumvention of the BAIID, the Secretary shall
send the BAIID permittee a letter asking for an explanation of the tampering or
unauthorized circumvention. If a response is received within 21 days after the
date of the Secretary's letter and it reasonably assures the Secretary that no
violation occurred, no further action will be taken. If a response is not
received within 21 days or does not reasonably assure the Secretary, then the
Secretary shall immediately cancel the RDP and authorize the immediate removal/uninstallation
of the BAIID.
7) For
any BAIID permittee required to submit a letter of explanation, if a review of
the images taken at the time of the violation indicates the BAIID camera was prevented
from taking clear and accurate images of the individual blowing into the
mouthpiece, the explanation shall automatically be rejected and the appropriate
sanction, as set forth in this subsection (i), shall be imposed.
8) If
review of the images captured by the BAIID indicates the camera is obstructed
or the BAIID permittee, other person attempting to start the vehicle, or the
camera is positioned in such a manner as to prevent a clear image of the face
of the person blowing into the BAIID, the Secretary shall send notification to
the BAIID permittee to properly adjust the camera and/or to position himself or
herself in a manner that will allow for a clear image of the operator of the
BAIID, and informing the permittee that the camera must not be obstructed. If,
after notification is sent, a review of images captured by the BAIID discloses
that the camera is still obstructed or is not taking clear images of the
operator, the RDP may be cancelled.
9) Failure
to Submit a BAIID for Monitoring in a Timely Manner. Unless notified by a
BAIID provider pursuant to subsection (j)(2), all monitor reports shall be
submitted to the Secretary within 67 days after the previous monitor report. If
the Secretary fails to receive a BAIID permittee's monitor reports in the 67
days, the Secretary will conduct an informal inquiry (will attempt to contact
the BAIID provider and permittee by telephone or e-mail) for the purpose of
determining the cause for this failure. If it is determined or if it appears
that the BAIID permittee failed to take in a vehicle with the BAIID for timely
monitor reports or failed to send the appropriate portion of the BAIID,
utilizing a traceable package delivery service, to the BAIID provider or
installer for timely monitor reports, the Secretary will send a letter to the
BAIID permittee stating that, if the BAIID is not taken in for a monitor report
within 10 days after the date of the letter, any permits issued to the BAIID
permittee will be cancelled.
j) Immediate Cancellation of BAIID RDP. Any one of the
following shall be grounds for immediate cancellation of an RDP issued under
this Section:
1) Any law enforcement report showing operation of a vehicle by a
BAIID permittee without a BAIID as required by the RDP issued under this
Section. The law enforcement officer shall, at the time of the stop,
confiscate the RDP and send it, or a copy of it, along with the report, to the
Secretary;
2) Notification from a BAIID provider or installer on a removal/uninstallation
report form stating that the BAIID installed in a BAIID permittee's vehicle has
been removed and/or is no longer being utilized by the permittee, as required
by subsection (d), including a removal or uninstallation caused by the BAIID
permittee's failure to pay lease or rental fees owed to the BAIID provider,
unless the permittee has notified the Secretary that the permittee is no longer
utilizing the BAIID and surrendered the BAIID permit to the Secretary as
required in subsection (h). This notification shall be sent to the Secretary
no more than 7 days after the removal/uninstallation;
3) Any law enforcement report involving a DUI;
k) Hearing to Contest Cancellation of BAIID RDP. Any BAIID
permittee whose RDP is cancelled as provided in this Section may request a
hearing to contest the cancellation within 60 days from the effective date of
the cancellation. The hearing will be scheduled and held on an expedited
basis. The hearing will be conducted as any other formal hearing under this
Part. Any BAIID permittee whose RDP is cancelled under the provisions of this
Section and who is required to abstain from alcohol/drugs (whose alcohol/drug
use was classified at High Risk-Dependent) and who admits to consuming
alcoholic beverages may not request a hearing to contest the cancellation.
1) The
purpose of a hearing to contest a BAIID cancellation is to determine whether
the BAIID Division acted in accordance with its rules, procedures and
guidelines in entering the cancellation of driving privileges, based upon the
evidence available to it at the time of its initial decision. If it is
determined at the hearing that the BAIID Division did not act in accordance
with its rules, procedures and guidelines, the Department of Administrative
Hearings will enter an Order rescinding the cancellation. If it is determined
at the hearing that the BAIID Division acted in accordance with its rules,
procedures and guidelines, the Department of Administrative Hearings will enter
an Order either affirming the cancellation or an Order affirming, but
terminating, the cancellation. A termination will be entered when the
petitioner provides additional credible evidence at the hearing regarding the
petitioner's alleged violation of the rules of the BAIID program, or that the
BAIID Division was misinformed or did not have all the essential facts at the
time of its initial decision. The findings of fact must articulate the
additional facts and circumstances cited in the Order of Termination that support
the rationale for concluding that the public safety and welfare is better
served by a termination.
2) Any
BAIID permittee whose RDP is cancelled for any reason provided for in this
Section, and whose cancellation was terminated after a formal hearing to contest
the cancellation, is immediately eligible to petition for another formal
hearing if the petitioner's RDP has expired by the time that the final order
from the formal hearing has been entered. If the RDP has not expired, then a
new RDP will be issued with the same expiration date as the cancelled RDP.
3) Any
BAIID permittee whose RDP is cancelled for any reason provided for in this
Section, and whose cancellation was rescinded after a formal hearing to contest
the cancellation, will be issued a new RDP with the same expiration date as the
cancelled RDP. If the RDP has expired, the petitioner is immediately eligible
to petition for another formal hearing.
l) No Hearing for 90 Days After Cancellation. Any BAIID
permittee whose RDP is cancelled for any reason as provided for in this Section
shall not be granted another hearing for any type of driving relief for 90 days
from the date of the cancellation, except to contest the cancellation as
provided in subsection (k). In the event a hearing is held pursuant to
subsection (k) and the cancellation is affirmed, the BAIID permittee shall not
be granted another hearing for driving relief for 30 days from the date of the
order affirming the cancellation.
m) Formal Order – Content. Any formal order entered that grants
the issuance of an RDP as provided for in this Section shall, in addition to
all other requirements, clearly indicate the following:
1) That the RDP is issued conditioned upon BAIID installation and
proper usage of the BAIID by the permittee; and
2) That the BAIID permittee is aware of all conditions and terms
of BAIID installation and proper usage of the BAIID, and the permittee accepts
those conditions and terms as conditions precedent to the issuance of the RDP.
n) RDPs – Content. Any RDPs issued as provided for in this
Section shall, in addition to all other requirements, clearly indicate:
1) That the RDP is issued pursuant to the BAIID requirements of
this Section, and that a vehicle operated by a BAIID permittee must be equipped
with an installed, properly operating BAIID;
2) That the provisions of the RDP also allow the BAIID permittee
to drive to and from the BAIID provider or installer for the purposes of
installing the BAIID within 14 days after the issuance of the RDP, or obtaining
monitor reports, and any necessary servicing.
o) Use of Monitor Reports. The Secretary shall gather all
available monitor reports and images and any other information relative to the
permittee's performance and compliance with the BAIID requirements under this
Subpart D. The reports, images and information may be used as evidence at any
administrative hearing conducted by the Secretary under this Part.
p) Modification
or Waiver of BAIID
1) The
Secretary may make a medical or physical BAIID modification or waiver for RDPs
issued under this Section. When a BAIID permittee provides a report from a
physician stating the permittee is physically unable to produce an adequate
breath sample to operate the BAIID, the Secretary may allow the permittee to
install a BAIID that operates with a lower breath sample requirement. The
Secretary may, at the Secretary's discretion, obtain a review of the
physician's report by the Secretary's Medical Advisory Board.
2) When a BAIID permittee is the owner of only one vehicle, this
modification may also be granted if an immediate family member who resides with
the BAIID permittee must drive the vehicle and the immediate family member is
unable to provide an adequate breath sample to operate the BAIID.
q) Employment Exemption from BAIID Requirements. In determining
whether a BAIID permittee is exempt from the BAIID requirements pursuant to the
waiver provided for in IVC Sections 6-205 and 6-206, the following shall apply:
1) The term "employer" shall
not include an entity owned or controlled in whole or in part by the permittee
or any member of the permittee's immediate family, unless the entity is a
corporation and the permittee and the permittee's immediate family own a total
of less than 5% of the outstanding shares of stock in the corporation.
Immediate family shall include spouse, children, children's spouses, parents,
spouse's parents, siblings, siblings' spouses and spouse's siblings;
2) The
exemption shall not apply where the employer's vehicle is assigned exclusively
to the BAIID permittee or the BAIID permittee uses the vehicle for commuting to
and from employment or for other personal use.
3) Appropriate
limits will be established for necessary on-the-job driving. The days, hours
and mileage limits will not exceed those necessary for the accomplishment of
the BAIID permittee's primary employment and shall be limited to a maximum of
12 hours per day and 6 days per week unless the request for increased limits is
substantially documented, such as through an employer's verification of the
BAIID permittee's work schedule.
4) An
exemption also may be granted to a BAIID permittee who can prove that the
permittee duties include test-driving vehicles not owned by the permittee. The
exemption will be limited to this purpose and to no more than a 5-mile radius
from the permittee's place of employment.
5) The
Secretary will also inform a BAIID permittee whose employment exemption is
terminated that the permittee remains eligible to have an interlock BAIID
installed in the permittee's personal vehicle and the employer's vehicle
without a hearing. Failure to have the BAIID installed by the date designated
by the Secretary will result in the termination of the BAIID permittee's RDP.
r) Decertification
of BAIID Providers and BAIID. The Secretary must notify the BAIID permittee of
the decertification of a BAIID provider or the decertification of a particular
type of BAIID. The BAIID permittee must then select a new BAIID provider or
type of BAIID from the list of approved BAIID providers maintained by the
Secretary. The BAIID permittee must inform the Secretary of that selection
within 7 days after the receipt of notification from the Secretary. The BAIID
permittee must complete registration with a new BAIID provider and/or
installation of a new BAIID within 21 days after the receipt of the
notification from the Secretary. Failure to complete these steps within the
21-day period may result in cancellation of the BAIID permittee's RDP. All
costs related to any change in BAIID provider or BAIID shall be paid by the
BAIID permittee.
s) Reciprocity
with Other States. The Secretary will honor the BAIID requirements imposed by
other states on Illinois drivers and drivers licensed in other states, for
offenses committed in other states, and will reciprocate other states'
recognition of BAIID requirements imposed by Illinois on drivers licensed in
Illinois, or licensed in other states for offenses committed in Illinois.
t) Monitor
Reports Received after Reinstatement. If the Secretary receives a monitor
report after the BAIID permittee's driving privileges have been reinstated
showing a violation that would have led to reinstatement being denied, the
Secretary shall cancel the driving privileges and notify the permittee of the
cancellation. The permittee shall be further notified that the permittee may
apply to have the permit reissued, conditioned upon reinstalling the BAIID and
payment of all applicable fees, unless otherwise prohibited by this Section.
The Secretary shall also notify the permittee of the right to request a hearing
to contest the cancellation.
(Source:
Amended at 45 Ill. Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.442 BAIID PROVIDER CERTIFICATION PROCEDURES AND RESPONSIBILITIES; CERTIFICATION OF BAIIDS; INSPECTIONS; BAIID INSTALLER'S RESPONSIBILITIES; DECERTIFICATION OF A BAIID PROVIDER
Section 1001.442 BAIID Provider Certification Procedures
and Responsibilities; Certification of BAIIDs; Inspections; BAIID Installer's
Responsibilities; Decertification of a BAIID Provider
a) Certification
Required to Provide BAIID Services. No person or entity may provide BAIID
services pursuant to this Subpart D unless certified as a BAIID provider by the
Secretary. All certified BAIID providers must apply for recertification on an
annual, calendar year basis, with applications for recertification due in the
Secretary's office no later than September 1 of each year.
b) Who
May Provide BAIID Services. BAIID providers may be a manufacturer of BAIIDs,
an authorized representative of a manufacturer of BAIIDs, an installer of
BAIIDs or other business entity. Without regard to the specific business
operations of the BAIID provider, all certified BAIID providers under this
Section shall be responsible for insuring that all of the duties and responsibilities
of a BAIID provider are carried out in accordance with this Subpart D,
including, but not limited to, providing, distributing, installing and
servicing approved BAIIDs. BAIID providers may provide these services through
their own resources, through a subsidiary, or through contractual relationships
with third parties.
c) Information
Required in Application for Certification. Persons or entities desiring to be
certified as BAIID providers may submit an application for certification at any
time. An application for certification or recertification as a BAIID provider
shall include all of the following information:
1) The
name, business address and telephone number of the applicant. If the applicant
is a business entity other than a corporation, the application must include the
names and addresses of the owners of the entity. If the applicant is a
corporation, the application must include the names and addresses of any person
or entity owning 10% or more of the outstanding shares of the corporation;
2) The
names, business addresses and telephone numbers, and titles of any officers,
managers or supervisors of the applicant who will be involved in the provision
of BAIID services;
3) A
description of each BAIID the applicant proposes to install, including the name
and address of the manufacturer and the model of the unit, with a copy of all
manuals and information guides made available to program participants. Unless
the BAIID has been previously certified by the Secretary pursuant to this Section,
the application must include the information necessary to obtain certification
of the BAIID pursuant to this Section;
4) If
the applicant is not a BAIID manufacturer, the application must include proof
of the applicant's right to distribute and install the particular types of
BAIIDs the applicant is proposing to utilize. The proof may include a letter
(composed on letterhead stationery), or a copy of a purchase, lease, rental or
distribution agreement with the manufacturer;
5) A
detailed description of the applicant's plan for distribution, installation and
service of BAIIDs in Illinois, including the names and addresses of all
installers the applicant intends to use. This plan must demonstrate the
applicant's ability to distribute and install BAIIDs and the ability to submit
reports to the Secretary electronically within the time frames established by
this Subpart D;
6) A
list of all other jurisdictions/states in which the applicant currently
operates or has operated, and contact information for each jurisdiction/state;
7) Copies
of policy and procedure manuals and training manuals used regarding installer
training, calibration training, calibration equipment, installation equipment,
and contracts/agreements with installers;
8) A
signed statement that the applicant agrees to provide services to program
participants who have been declared indigent by the Secretary for the purposes
of the BAIID program;
9) Proof
of liability insurance. General commercial liability and/or product liability
insurance, which shall include coverage for installation services, shall be
maintained with minimum liability limits of $1 million per occurrence and $3
million aggregate total. If the applicant is not both the manufacturer and
installer of the BAIID, proof of liability insurance must be provided showing
coverage of both the manufacturer and the installer. If proof of separate
policies for the manufacturer and installer is provided, each policy must have
minimum liability limits of $1 million per occurrence and $3 million aggregate
total. Other commercially acceptable insurance arrangements, in the same
minimum amounts, may be accepted at the discretion of the Secretary;
10) A
statement that the applicant shall agree to indemnify and hold the State of
Illinois and the Secretary, their officers, agents and employees, harmless from
and against any and all liabilities, demands, claims, suits, losses, damages,
causes of action, fines or judgments, including costs, attorneys' and
witnesses' fees, and expenses incident to any of these actions, relating to
bodily injuries to persons (including death) and for loss or damage to, or
destruction of, real and/or tangible property (including property of the State)
resulting from the negligence or misconduct of the applicant, its employees,
agents or contractors in the manufacture, installation, service, repair, use or
removal of a BAIID or performance of any other duties required by this Section;
11) Examples
of images taken by the BAIID. If, in the opinion of the Secretary, the images
are not clear and accurate, the Secretary may deny certification;
12) Proof
that the applicant is in good standing with the Illinois Secretary of State,
Business Services Department.
d) The
Secretary shall notify the applicant, in writing, of the Secretary's decision
regarding the application for certification or recertification as a BAIID
provider.
e) If an
original or amended application to be certified or recertified as a BAIID
provider is denied, the applicant may not reapply until 12 months have elapsed
from the date of denial or the date of the final order of the hearing officer
upholding the denial if the decision is reviewed in a formal administrative
hearing. Prior to denying an application based on de minimis errors, including
but not limited to typographical or scrivener's errors, the Secretary shall
advise the applicant of the error and provide the applicant 14 business days to
correct the error.
f) In
deciding whether to grant or deny an application, the Secretary may take into
consideration the applicant's past performance in Illinois and other
jurisdictions in manufacturing, distributing, installing or servicing BAIIDs,
whether the applicant's license or certification to manufacture, distribute,
install or service BAIIDs has ever been suspended, revoked, denied, cancelled
or withdrawn and whether the applicant has applied to operate as a BAIID
provider in another state and was denied.
g) An applicant
that has been certified pursuant to this Section may at any time submit an
amended application seeking certification to distribute and install a BAIID
model in addition to or other than the models previously certified for use by
the applicant.
h) Services
that Must be Provided. After certification or recertification by the
Secretary, BAIID providers shall provide the following services and meet the
following requirements:
1) All
installations of BAIIDs shall be done in a workmanlike manner and shall be in
accordance with the standards set forth in this Section and with the
requirements of the manufacturer. All BAIIDs installed shall be in working
order and shall perform in accordance with the standards set forth in this
Section. All BAIIDs must be installed and all reports to the Secretary must be
made within the time frames established by this Subpart D;
2) The
BAIID provider shall only install models of BAIIDs that the provider has been
authorized to install pursuant to this Section and the BAIIDs shall only be
installed at installation sites reported to the Secretary pursuant to this
Section;
3) Any
BAIID provider that sells, rents and/or leases BAIIDs in Illinois pursuant to
this Subpart D shall report to the Secretary within 7 days all such sales,
rentals, and/or leases listing the BAIID permittee's name and driver's license
number, the installer, the installer's location, the make and serial number of
the BAIID, and the make, model and VIN of the vehicle in which the BAIID is
installed;
4) The
BAIID provider shall provide a toll free customer service/ question/complaint
hotline that is answered, at a minimum, during normal business hours, Monday
through Friday;
5) The
BAIID provider shall provide a course of training and written instructions for
the BAIID permittee or MDDP offender on operation, maintenance, and safeguards
against improper operations, and instruct the BAIID permittee or MDDP offender
to maintain a journal of events surrounding failed readings or problems with
the BAIID. Copies of all materials used in this course of training shall be
provided to the Secretary;
6) The
BAIID provider shall provide service for malfunctioning or defective BAIIDs
within a maximum of 48 hours after notification of a request for service. This
support shall be in effect during the period the BAIID is required to be
installed in a motor vehicle;
7) The
BAIID provider shall provide, at the request of the Secretary, expert or other
required testimony in any civil or criminal proceedings or administrative
hearings as to issues involving BAIIDs, including the method of manufacture of
the BAIID and how the BAIID functions;
8) If a
BAIID provider requires a security deposit by a BAIID permittee or MDDP
offender and the amount of the deposit required is more than an amount equal to
one month's rental or lease fee, the security deposit must be deposited in an
escrow account established at a bank, savings bank or savings and loan
association located within the State of Illinois. The BAIID provider will
provide the Secretary with a certified statement of the escrow account upon the
Secretary's request;
9) BAIID
providers must submit monitor reports or reports of any other service to the
Secretary whenever a BAIID is brought in for monitoring, a portion of the BAIID
is sent to the BAIID provider, the BAIID is read remotely, or a BAIID is
brought in pursuant to a service or notification report. Except as provided in
subsection (h)(10), the reports must be submitted to the Secretary no later
than 7 days from the date the BAIID is brought in, an appropriate portion of
the BAIID is sent to the BAIID provider, or the BAIID is read remotely;
10) When a
vehicle is brought into a service center to have the BAIID read or calibrated,
the BAIID installer shall carefully inspect the BAIID and all wiring and
connections related to the BAIID for signs of tampering or circumvention. If a
BAIID has been installed that permits the BAIID permittee or MDDP offender to
mail in a portion of the BAIID to be read and calibrated, or allows the BAIID
to be read remotely, that BAIID permittee or MDDP offender shall be required to
bring the vehicle into a BAIID installation site at least once every 6 months
so that the BAIID and all related wiring and connections may be inspected for
signs of tampering or circumvention. Within 2 business days after discovery,
the BAIID provider shall report to the Secretary evidence of tampering or
attempts to circumvent a BAIID. The BAIID provider shall preserve any
available physical evidence of tampering or circumvention and shall make that
evidence available to the Secretary. Within 2 business days after an inspection
of a mail-in or remotely read BAIID vehicle, the installer shall notify the SOS
that evidence of tampering or circumvention has been found;
11) BAIID
providers shall notify the Secretary within 7 days when a BAIID has been
installed, reinstalled or deinstalled, and shall provide to the Secretary, upon
request, additional reports, to include but not be limited to records of
calibrations, maintenance checks and usage records on BAIIDs placed in service
in Illinois;
12) The
BAIID provider shall provide service to all BAIID permittees or MDDP offenders
who request services from the BAIID provider and who have met the requirements
of this Subpart D, including the payment of fees due to the provider, unless
the fees are otherwise waived by rule or statute;
13) The
BAIID provider must immediately notify the Secretary in writing if the provider
or the BAIID manufacturer or installer becomes unable to produce, supply,
service, repair, maintain or monitor BAIIDs in compliance with this Subpart D
or if the provider has been suspended or decertified in any other jurisdiction;
14) With
the exception of mobile installations authorized by Section 1001.442(n), the
BAIID provider shall provide the Secretary a list of all locations in Illinois
where BAIIDS may be purchased, rented, leased, installed, removed, serviced,
repaired, calibrated, accuracy checked, inspected and monitored. The BAIID
provider shall notify the Secretary within 48 hours of any new installation
locations or any installation locations that are closed;
15) The
BAIID provider shall install, monitor and deinstall authorized BAIIDs without
fee to any MDDP offender determined to be indigent by the Secretary who
requests services from the BAIID provider and who presents written
documentation of indigency from the Secretary;
16) The
Secretary may designate the form, format and method of delivery (e.g.,
facsimile, electronic transfer, etc.), for any reports, information, or data
required to be filed with the Secretary pursuant to this Subpart D, including,
but not limited to, installation verification forms, monitoring report forms,
noncompliance report forms, notices of calibration, verification, tampering or
circumvention, removal or deinstallation report forms, and information
necessary to implement and monitor the indigent surcharge payments to the Indigent
BAIID Fund and payment provisions from the Indigent BAIID Fund set forth in IVC
Section 6-206.1 and Section 1001.444. Images taken by the BAIID must be
available to the Secretary via online account access;
17) The
Secretary shall review and approve leases or rental agreements the BAIID
provider intends to utilize between the BAIID provider and the BAIID permittee
or MDDP offender. The BAIID provider shall submit to the Secretary a copy of
the schedule of all fees that will be charged to BAIID permittees or MDDP
offenders, and shall submit an amended schedule of fees whenever there is a
change to the BAIID provider's fees;
18) The
BAIID providers shall agree to take assignments to unserved areas of Illinois
pursuant to this Section, as those areas are defined in subsection (m)(2);
19) The
Secretary shall have the right to conduct independent inspections of BAIID
providers, manufacturers and installers, including inspection of any BAIIDs and
calibration equipment present at the time of the inspection, to determine if
they are in compliance with the requirements of this Subpart D. The Secretary
shall notify, in writing, and require the BAIID provider to correct any
noncompliance revealed during any inspections. Within 30 days after receiving
a notice of noncompliance, the BAIID provider shall notify the Secretary, in
writing, of any corrective action taken;
20) Upon
the request of the Secretary, the BAIID provider shall, at no cost to the State
of Illinois, provide the Secretary with not more than two BAIIDs for each model
that is certified under this Section. These models will be used for
demonstration and training purposes;
21) Unless
an alternative method for reading and calibrating the BAIID has been approved
by the Secretary, all BAIIDs shall be recalibrated, whenever they are brought
to the provider for any type of service or monitoring, using a wet bath simulator
or other approved equivalent procedure, i.e., dry gas standard. Calibrations
shall be done no less frequently than every 67 days, including those BAIIDS
that are read remotely;
22) Calibration
equipment shall be in good working order and maintained and operated according
to the equipment manufacturer's recommendations. Solution in wet bath
calibration units shall be changed according to the manufacturer's
recommendations and new solution shall be stored in a cool, dry location and
discarded upon the expiration date. Dry gas cylinders must be stored in an
area protected from exposure to weather;
23) BAIID
providers shall maintain records related to a BAIID permittee or MDDP offender,
including but not limited to installation, monitoring, circumvention and
deinstallation, for a period of 3 years after the BAIID is deinstalled.
i) Criteria
for Certification of BAIIDs. Only BAIIDs that have been certified for use in
Illinois pursuant to this Section may be installed in the vehicles of BAIID
permittees and MDDP offenders. Certification of a BAIID shall be based on the
following criteria:
1) A
review and evaluation of test results from any nationally recognized and
certified laboratory test facility that is accredited by the International
Standards Organization (ISO). The evaluation and test results must affirm the
BAIID's ability to meet the Model Safety and Utility Specifications for Breath
Alcohol Ignition Interlock Devices (BAIIDs) promulgated by the National Highway
Traffic Safety Administration (NHTSA), U.S. Department of Transportation, 78
Fed. Reg. 89, May 8, 2013, except for:
A) 1.4.S,
Power, if the BAIID is not designed to be operated from the battery;
B) 1.5.2.S,
Extreme Operating Range, if the BAIID is not designed to be operated below -20°
C and above +70° C;
C) 2.3.S,
Warm Up, if the BAIID is not designed to be operated below -20° C;
D) 2.5.S,
Temperature Package, if the BAIID is not designed to be operated below -20° C
and above +70° C;
2) The BAIID provider must
certify that the BAIID:
A) Does
not impede the safe operation of a vehicle;
B) Minimizes
opportunities to bypass the BAIID;
C) Performs
accurately and reliably under normal conditions;
D) Prevents
a BAIID permittee or MDDP offender from starting a vehicle when the BAIID
permittee or MDDP offender has a prohibited BrAC, i.e., P≥ 0.025;
E) Satisfies
the requirements for certification set forth in this Section;
F) Has a
camera that takes clear and accurate images of the individual utilizing the
BAIID and that has a sufficiently wide angle that it will be possible to
determine whether the individual blowing into the BAIID is seated in the
driver's seat and whether a circumvention device has been inserted into the
mouthpiece of the BAIID;
G) Provides
calibration stability for a period of no less than 67 days;
3) No
BAIID shall be certified if it demonstrates an accuracy rate ≥ 0.01 in
unstressed conditions or ≥ 0.02 in stressed conditions. The terms
"stressed" and "unstressed" shall be defined according to
the NHTSA standards referred to in subsection (i)(1);
4) Any
BAIID to be certified shall be designed and constructed with an alcohol
setpoint of 0.025;
5) Any
BAIID to be certified shall require the operator of the vehicle to submit to a
running retest at a random time within 5 to 15 minutes after starting the
vehicle. Running retests shall continue at a rate of two per hour in random
intervals not to exceed 45 minutes after the first running retest;
6) Any
BAIID to be certified shall be designed and constructed to immediately begin
blowing the horn if:
A) The
running retest is not performed;
B) The
BrAC reading of the running retest is 0.05 or more; or
C) Tampering
or circumvention attempts are detected;
7) The BAIID
shall be required to have permanent lockout 5 days after it gives service or
inspection notification to the BAIID permittee or MDDP offender if it is not
serviced or calibrated within that five day period.
A) The
BAIID shall give service or inspection notification to the BAIID permittee or
MDDP offender upon the occurrence of any of the following events:
i) Every
instance in which the BAIID registers 3 BrAC readings of .05 or more within a
30 minute period;
ii) Any
attempted tampering or circumvention;
iii) The
time for the BAIID permittee or MDDP offender to take the vehicle for the
initial monitor report;
iv) Every
60 days after the initial monitor report;
v) For
MDDP offenders, 5 violations within the 60 day monitoring period;
vi) Every
6 months, for an inspection pursuant to Section 1001.441(h)(2) in which the
type of BAIID installed allows for a portion of the BAIID to be mailed in or
allows the BAIID to be read remotely;
B) In
addition, the BAIID shall record and communicate to the BAIID permittee or MDDP
offender and to the Secretary's office via monitor reports all of the preceding
events and all starts of the vehicle, both successful and unsuccessful;
C) The
BAIID shall record an image each time the vehicle is started, each time a test
is prompted, each time a successful or unsuccessful test sample is taken, and
whenever there is a failed attempt to provide a breath sample;
8) The
BAIID shall be required to have 24 hour lockout anytime the BAIID permittee or
MDDP offender registers 3 BrAC readings of 0.05 or more within a 30 minute
period;
9) Certification
of a BAIID may be withdrawn by the Secretary, based on a field testing protocol
developed by the Secretary to determine the BAIID's ability to operate in a
consistently reliable manner and based upon review of field performance
results; a review of BAIID usage by BAIID permittees and MDDP offenders; and
BAIID monitor reports;
10) Upon
the request of the Secretary, the BAIID provider shall, at no cost to the State
of Illinois, install not more than three of each model of BAIID for which
certification is sought in the vehicles provided by the Secretary for field
testing. The Secretary may independently evaluate each BAIID to ensure
compliance with the requirements in this Section. The evaluation criteria
include, but are not limited to, repeated testing of alcohol-laden samples,
filtered samples, circumvention attempts, tampering, and testing for all
specifications listed in this Subpart D. An applicant or provider is limited
to 3 field tests per BAIID model as part of the certification process. If a
BAIID model of an applicant or provider fails 3 field tests, the applicant or
provider shall not be certified unless the applicant or BAIID provider has
another BAIID model that has been certified by the Secretary;
11) Upon
the request of the Secretary, for each model of BAIID certified under this
Section, the BAIID provider shall provide a total of at least 10 hours of
training to the Secretary's employees at no cost to the State of Illinois.
This training shall be held at the times and locations within the State
designated by the Secretary. The training shall be designed to familiarize the
Secretary's employees with the installation, operation, service, repair and
removal of the BAIIDs and with the training and instructions that the BAIID
provider will give to BAIID permittees and MDDP offenders. The BAIID provider
shall also provide the Secretary, upon request, the following materials:
A) A
detailed description of the BAIID, including complete instructions for
installation, operation, service, repair and removal of the BAIID;
B) Complete
technical specifications describing the BAIID's accuracy, reliability,
security, data collection and recording, tamper and circumvention detection,
imaging and environmental features;
12) Any
BAIID that is not certified may be re-tested at the request of the BAIID
provider but not more often than once in a calendar year;
13) The
Secretary shall not accept for certification any BAIID that uses Taguchi cell
technology to determine BrAC;
14) BAIIDs
must use, as their anti-circumvention method, one of the following
technologies: either a positive>negative>positive or positive>negative
air pressure test requirement, or a mid-test hum tone requirement. BAIID
providers may submit for approval to the Secretary new anti-circumvention
technologies. Upon approval by the Secretary, pursuant to the procedures in
this subsection (i), these technologies shall be included with the previously
mentioned anti-circumvention technologies as acceptable for use by BAIID
providers. In addition to these anti-circumvention methods, all BAIIDs
installed after July 1, 2013, and all BAIIDs in use in Illinois after July 1,
2015, shall include a camera that captures a clear and accurate image of the
individual blowing into the BAIID, including a sufficiently wide angle that it
will be possible to determine whether the individual blowing into the BAIID is
seated in the driver's seat and whether a circumvention device has been
inserted into the mouthpiece of the BAIID. The captured images shall be stored
by the vendor while the BAIID is installed in the vehicle and for 3 years after
removal and shall be made accessible to the Secretary, at the Secretary's
request, either by electronic access to the vendor's system or electronic mail;
15) After
a BAIID has been certified by the Secretary, no firmware or software
modifications shall be deployed without written authorization by the Secretary,
which may include installation of the BAIID with the proposed firmware or
software modifications in accordance with subsection (i)(10) and, if the
Secretary determines the software or firmware modification is major or
material, submission to an accredited lab in accordance with subsection (i)(1).
j) BAIID
Installers
1) All
installations of BAIIDs must be performed by installers identified to the
Secretary as employees of or contractors of a certified BAIID provider. The
provider must inform the Secretary whether installation is being done by its
own employees, contractors, or both. All installations shall be performed in a
professional and workmanlike manner. BAIID providers shall be responsible for
their installer's compliance with this Subpart D. A BAIID provider may be
decertified by the Secretary for the noncompliance of its installer with the
requirements of this Subpart D;
2) All
service centers and mobile installation units shall have all tools, test
equipment and manuals needed to install BAIIDs and screen motor vehicles for
acceptable mechanical and electrical condition prior to installation;
3) The
installer shall provide adequate security measures to prevent access to the
BAIIDs (tamper seals or installation instructions);
4) The
installer shall appropriately install BAIIDs on motor vehicles taking into
account each motor vehicle's mechanical and electrical condition, following
accepted trade standards and the BAIID manufacturer's instructions. All
connections shall be soldered or secured with no crimp wire connectors and
covered with tamper seals. It is the BAIID permittee's or MDDP offender's
responsibility to repair the vehicle if any prior condition exists that would
prevent the proper functioning of the BAIID. The installer shall inform the
BAIID permittee or MDDP offender that a problem exists, but shall not be
responsible for repairing the vehicle. The installer shall not permit the BAIID
permittee or MDDP offender to observe the installation of the BAIID;
5) The
installer shall not install BAIIDs in a manner that could adversely affect the
performance of the BAIID or impede the safe operation of the motor vehicle;
6) After
the BAIID has been installed in the motor vehicle, the installer shall verify
that the BAIID is functioning properly and shall have the BAIID permittee or
MDDP offender use the BAIID to start the vehicle to ensure familiarity with the
operation of the BAIID. At that same time, the installer shall verify that the
camera is operational and that a reference image of the BAIID permittee or MDDP
offender has been taken;
7) The
installer shall restore a motor vehicle to its original condition when a BAIID
is removed. All severed wires must be permanently reconnected and insulated
with heat shrink tubing or equivalent;
8) When
the installer is also providing monitoring and other services for the BAIID
after installation, the installer shall perform all of the duties that are
associated with service after the installation and that are required by this
Section of a BAIID provider. These duties shall include, but are not limited
to, completing all monitoring reports and/or mailing in the appropriate portion
of the BAIID to the BAIID provider, making notification of any evidence of
tampering or circumvention, and recalibrating BAIIDs whenever they are brought
in for service or monitoring;
9) The
installer shall not install a BAIID on any vehicle that does not have an
operable horn, but shall advise the BAIID permittee or MDDP offender to have
the vehicle's horn repaired before installation can occur.
10) All
installation sites must comply with state and local zoning requirements (e.g.
zoned for commercial or business purposes) and must be kept sanitary to include
cleaning up and sanitizing areas that contact pet waste. Only animals as
defined by 730 ILCS 5/48-8 are allowed in service centers.
11) Installers
may not smoke cigarettes, cannabis or any other substance while installing,
servicing, or removing a BAIID, in any area where the BAIID is installed,
serviced or removed, or in the presence of a BAIID permittee.
12) Post-Installation
Inspection. After installation of the BAIID, an inspection must be made by the
installer to ensure the installation was performed properly, the BAIID is
functioning as required, and, if equipped, a remote start system does not
interfere with the required functionality of the BAIID and does not allow the
vehicle to be started without a breath sample.
k) Suspension
and Decertification of BAIID Providers. The Secretary may suspend or decertify
a BAIID provider from providing BAIID services in Illinois. The Secretary
shall provide written notification to the BAIID provider regarding any
violation of this Section that may lead to suspension or decertification. The
BAIID provider will be given a 30 day opportunity to come into
compliance. The BAIID provider shall respond in writing to the Secretary
regarding the course of corrective action. If the course of corrective
action is deemed unacceptable by the Secretary, or if there are recurring
instances of the violations that led to the notice following the corrective
action, the Secretary may decertify the BAIID provider from providing services
in Illinois or suspend the BAIID provider from performing any new installations
for a period of 3 months. The following are considered actions warranting
suspension or decertification:
1) Failure
to submit monitor reports in a timely manner, as provided in subsections (h)(9)
and (h)(10). If the Secretary finds, through investigation, that the BAIID
permittee or MDDP offender did take the vehicle with the installed BAIID to the
BAIID provider, or sent the appropriate portion of the BAIID to the BAIID
provider for a monitor report in a timely manner, a request for the monitor
report shall be sent to the BAIID provider. If the information is not received
within 30 days, the BAIID provider will be given a 3 month suspension from
providing new installations in Illinois. Three occurrences within a 12 month
period will result in decertification;
2) Failure
to maintain liability insurance as required;
3) Failure
to install certified BAIIDs within the time requirements of this Subpart D;
4) Failure
to comply with all of the duties and obligations contained in this Subpart D;
5) Failure
to provide BAIID permittees or MDDP offenders with correct information
regarding the requirements of this Subpart D;
6) Failure
to submit a required surcharge to the Secretary or failure to submit a required
surcharge in a timely manner for deposit in the Indigent BAIID Fund as required
in IVC Section 6-206.1 and Section 1001.444 of this Part. If the amount in
dispute is not resolved within the above 30 day period, the BAIID provider
shall be decertified unless the BAIID provider submits, within the 30 day
period, a written request to review the amount in dispute to the BAIID
Division. The dispute will then be resolved according to the terms of the
contract entered into between the BAIID provider and the Secretary;
7) Failure
to work with BAIID permittees or MDDP offenders in a professional manner.
Complaints from BAIID permittees and MDDP offenders will be recorded. Repeated
complaints determined by the Secretary to be valid or clear violations of the
program requirements set forth in this Section shall result in decertification;
8) Failure
to provide installations in a workmanlike manner, as set forth in this Section,
and within the requirements of the manufacturer;
9) Installing
BAIIDs not certified by the Secretary;
10) Failure
to report installations and deinstallations to the Secretary within 7 days;
11) Failure
to maintain and upgrade calibration equipment, BAIIDs and cameras;
12) Failure
to provide services to indigent MDDP offenders;
13) Failure
to provide trained installers or installations that are not in compliance with
subsection (j)(2);
14) Failure
to inform the Secretary of suspension or decertification from service in
another jurisdiction within 30 days;
15) Failure
to notify the Secretary of any BAIID installer or service center that is no
longer installing or servicing BAIIDS for the provider;
16) Wiring
the BAIID for circumvention or creating a circumventing apparatus for the BAIID
permittee or MDDP offender;
17) Giving
information to a BAIID permittee or MDDP offender that results in or could
result in the BAIID being circumvented;
18) Failing
to use or make secure or appropriate wiring connections as specified in this
Section;
19) Installing
a BAIID in a vehicle that does not have an operable horn;
20) Failing
to maintain the calibration equipment and solutions as specified in this
Section;
21) Invalidation
of an installer's Illinois driver's license;
22) Failure
to meet any of the requirements of this Section or other applicable
administrative rules or statutes;
23) Solicitation
of a permittee for any service or product other than installation and use of a
BAIID.
l) Notification
of Decertification or Decision Not to Recertify. Upon a decision not to
recertify a BAIID provider, or upon decertification of a BAIID or the
decertification of or the cessation of the operation of a BAIID provider, the
Secretary shall notify in writing all affected BAIID permittees or MDDP
offenders. The notification shall be sent not less than 30 days after the decision
or, if the BAIID provider requests a formal administrative hearing within that
30 day period to review the decision, notification shall not be sent until the
entry of a final order of the hearing officer upholding the decision.
m) Designation
of Installation Sites
1) Each
BAIID provider shall be responsible for establishing installation sites within
the State to service BAIID permittees and MDDP offenders, or to provide mobile
installations as provided in subsection (n). Prior to notifying the Secretary
that an employee or contractor is an approved installer, the provider must
visit the installation site to ensure that all requirements of this Section are
met. Providers must visit each installer to ensure continued compliance with
this Section on an annual basis;
2) The
Secretary shall monitor the location of installation sites throughout
Illinois. If the Secretary determines that any place in Illinois is not within
75 miles of an installation site, the Secretary shall randomly select one of
the certified BAIID providers and require that BAIID provider to establish an
installation site or provide mobile installations in the unserved area. If a
second or subsequent area of Illinois is determined not to be within 75 miles
of an installation site, the Secretary shall randomly select a BAIID provider
other than the one selected previously and require that BAIID provider to
establish an installation site or provide mobile installations in the unserved
area. As a condition of being certified by the Secretary, BAIID providers must
agree to take assignments to unserved areas pursuant to this subsection (m)(2).
n) Mobile Installation Sites
1) A BAIID provider may install BAIIDs at locations other than
fixed, permanent installation sites.
2) All provisions in this Section, as well as Sections 1001.441
and 1001.444, are hereby made applicable to mobile installers and mobile
installations, except for those provisions that by their nature can have no
application to mobile installers and installations.
3) At the installation location, the installer must have a copy
of the permittee's/offender's request to have a BAIID installed and show it to
the permittee/offender upon request.
4) A provider may, but is not required to, provide an
identification card for mobile installers that includes, but is not limited to,
the name of the installer and the provider for which the installer works. The
identification card may also contain a photo of the installer.
5) Providers shall provide the Secretary with a schedule of
mobile installs 24 hours before the install occurs. The schedule shall contain
the name and address of the permittee/offender and the location where the
install will occur. The Secretary reserves the right to attend and inspect
mobile installations.
o) An
applicant whose application for certification or recertification as a BAIID
provider has been denied, or a BAIID provider who has been suspended or
decertified, shall have the right to have that decision reviewed at a formal
administrative hearing. In the case of a decision not to recertify or to
suspend or decertify, that decision shall not be implemented until at least 30
days after the notice of the decision has been sent to the applicant or
provider or, if the applicant or provider requests a hearing within that 30 day
period, until the entry of a final order of the hearing officer upholding the
decision. The hearings held under this Subpart D shall be conducted in
accordance with all of the rights, privileges, and procedures set forth in Subpart
A. A request for a hearing to contest a decision to deny certification or
recertification or to decertify must be in writing and must be sent to one of
the following locations:
1) Office
of the Secretary of State, Department of Administrative Hearings, 17 North
State Street, Suite 1200, Chicago, Illinois 60602, 312/793-3722;
2) Office
of the Secretary of State, Department of Administrative Hearings, Michael J.
Howlett Building, Room 207, Springfield, Illinois 62756, 217/524-0124.
p) Any
solicitation or correspondence sent from or provided by a BAIID provider to a
potential RDP or MDDP permittee must conspicuously
and in bold include the following
statements: "____________ (name of BAIID provider) is a privately-owned
entity and is not owned, operated, or endorsed by the Illinois Secretary of
State or any other Illinois government agency" and "____________
(name of BAIID provider) is not the sole BAIID provider authorized by the
Secretary of State." The solicitation or correspondence may not be
attached to or have the appearance of any official correspondence sent to a
permittee by the Secretary of State; may not state or otherwise indicate that
the provider is the sole or only BAIID provider in Illinois, and shall not
utilize the same font as utilized by the Illinois Secretary of State (Arial,
Calibri, Cambria, Garamond, and Times New Roman) when the Secretary sends
correspondence to permittees. A BAIID provider or installer may not use any
personal information (including the name, address, telephone number and/or
email address) provided by a permittee to solicit the permittee for any service
or product other than installation and use of BAIID, including, but not limited
to, insurance and auto repair.
(Source: Amended at 46 Ill.
Reg. 6772, effective April 13, 2022)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.443 BREATH ALCOHOL IGNITION INTERLOCK DEVICE MULTIPLE OFFENDER - COMPLIANCE WITH INTERLOCK PROGRAM
Section 1001.443 Breath Alcohol Ignition Interlock
Device Multiple Offender − Compliance with Interlock Program
a) Ownership
Defined. For the purposes of this Section, a person "owns" a vehicle
when it is registered in the person's name, regardless of whether it is
registered solely in the person's name or jointly with another person or
persons, except as follows:
1) When
the offender is able to demonstrate that the offender's name is on the joint
title solely for the purpose of allowing a third party to obtain financing to
purchase the vehicle, and the vehicle is not available for use by the offender;
2) A
vehicle is not considered to be owned by the person when:
A) that
person owns and operates a business as a sole proprietorship or as a
partnership with 3 or fewer partners;
B) the
business has been in existence for at least 2 years prior to the date of the
application for an RDP;
C) the
person identifies 4 or more vehicles registered in the person's name that are
used exclusively in the operation of the business;
D) the
person does not operate any of the identified vehicles at any time; and
E) the
person is able to provide the name, address and driver's license number of the
business employees who operate the identified vehicles.
b) Installation
Required
1) Anyone
who is required to install a BAIID on all owned vehicles, pursuant to IVC Sections
6-205(h) and 11-501.01(e), and who is granted any driving relief pursuant to
Subpart D of this Part, shall have a BAIID installed on all owned vehicles within 14 days after the issuance of
driving relief. The offender must maintain a BAIID on each vehicle for a
period of 1,826 consecutive days.
2) For
purposes of subsection (b)(1), the period of 1,826 consecutive days begins on
the date that a BAIID is installed on all owned vehicles and ends 1,826 days
later. This shall be known as the "base period". The base period
remains the same regardless of whether the petitioner adds or replaces vehicles
during the 1,826 consecutive days. The 1,826-day base period does not begin to
run if a permittee is granted an RDP and only drives a vehicle for which an
employment exemption has been granted.
c) Verification
of Compliance. The Secretary shall verify compliance by conducting periodic
checks of the vehicle registration records of BAIID multiple offenders, and by
monitoring compliance with the terms and conditions of the interlock
requirements as provided in Section 1001.441.
1) If
the Secretary finds evidence of non-compliance with the installation
requirements by a BAIID multiple offender, then the Secretary will send the
offender a letter asking for an explanation for the alleged violation. If a
response is received within 21 days after the date of the Secretary's letter
and it reasonably assures the Secretary that no violation occurred, no further
action will be taken. If a response is not received within 21 days or does not
reasonably assure the Secretary, the failure to comply will result in the
immediate cancellation of the driving relief issued. The cancellation will not
be terminated until the offender comes into compliance. BAIID multiple
offenders whose driving privileges are cancelled due to violation of the
installation requirements will be required to come into compliance and maintain
compliance for another 1,826 consecutive days.
2) If the Secretary finds evidence of
non-compliance with the installation requirements by a BAIID multiple offender
who is also a BAIID permittee as defined in
Section 1001.410 and who, therefore, is issued a restricted driving permit,
then the Secretary will send the offender a letter asking for an explanation
for the alleged violation. If a response is received within 21 days after the
date of the Secretary's letter and it reasonably assures the Secretary that no
violation occurred or the violation has been rectified, no further action will
be taken. If a response is not received within 21 days or does not reasonably
assure the Secretary, the failure to comply will result in the immediate
cancellation of the driving relief issued. Pursuant to Section 1001.441(g) and
(l), the BAIID permittee will not be
granted another hearing for 90 days from the date of the cancellation, except
to contest the cancellation.
3) If
the Secretary finds evidence of non-compliance with the terms and conditions of
the interlock requirements by a BAIID multiple offender whose driving
privileges have been reinstated, then the offender's driving privileges will be
cancelled for a term of 3 months on the first violation, 6 months on the second
violation, and 12 months on the third and subsequent violations. At the end of
the period of cancellation, the offender will be required to come into and
maintain compliance for another 1,826 consecutive days.
4) The Secretary reserves the discretion to cancel a BAIID
multiple offender's driving privileges
if monitor reports, processed after a hearing is conducted or after the
reinstatement of the BAIID multiple offender's driving privileges, show a violation of the terms and conditions of the
interlock requirements, including the use of any product intended to prevent
accurate readings by the BAIID.
d) In addition to installing
a BAIID on every vehicle owned, a BAIID multiple offender is prohibited from
driving any vehicle that does not have a BAIID installed, unless the offender
is granted an employment exemption in accordance with IVC Section 6-205 or 6-206
and Section 1001.441 of this Part.
e) A BMO
who has been granted driving relief prior to January 1, 2016, or who has had a
hearing prior to January 1, 2016 and the order from that hearing grants driving
relief, is subject to a compliance period of 366 consecutive days. A BMO who
is granted driving relief and does not complete the requirements of the driving
relief (i.e., payment of reinstatement fee, filing of SR-22 insurance,
completion of vision, written and road exams) within the time required by the
Secretary, whose driving relief is cancelled, whose petition for driving relief
is denied, or who uninstalled the BAIID prior to having the BAIID installed for
366 consecutive days, shall thereafter be subject to a compliance period of
1,826 consecutive days.
f) The
offender may contest a cancellation entered pursuant to this Section by filing
a petition for a formal hearing pursuant to IVC Section 2-118.
(Source: Amended at 45 Ill.
Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.444 MONITORING DEVICE DRIVING PERMIT (MDDP) PROVISIONS
Section 1001.444 Monitoring Device Driving Permit (MDDP)
Provisions
a) Breath
Alcohol Ignition Interlock Device (BAIID) Required for Issuance; Fee Required
1) The
Secretary shall notify a first offender (MDDP offender), as defined in IVC Section
11-500, that he or she will be issued an MDDP. The issuance of the MDDP shall
be conditioned on the installation and use of a BAIID in any vehicle operated,
as required by IVC Section 6-206.1. Only BAIIDs certified by the Secretary
under Section 1001.442 of this Part may be utilized. As provided in IVC Section
6-206.1, an MDDP offender must pay a non-refundable fee in an amount equal to
$30 per month times the number of months or any portion of a month remaining on
the statutory summary suspension at the time the Secretary issues the MDDP. No
fee will be charged for any month in which the Secretary issues the MDDP on or
after the 20th day of that month. This total, one time payment for
each MDDP issued must be paid in advance and prior to the issuance of the
MDDP. Payment must be submitted in the form of a money order, check or credit
card charge (with a pre-approved card), made payable to the Secretary of
State.
2) Any
MDDP holder whose summary suspension is extended or who is re-suspended as
provided for in IVC Section 6-206.1 and who applies for and obtains an
extension or re-issuance of an MDDP, shall likewise be required to pay the
non-refundable fee for the length of the period of extension or re-suspension
under the same terms and conditions as stated in subsection (a)(1). Any such
suspension will not be terminated until payment of any and all fees due under
this Section is made.
3) Any
MDDP offender whose driving privileges are otherwise suspended, revoked,
cancelled or become otherwise invalid is not eligible to receive an MDDP.
4) Any
MDDP shall be invalid and must be surrendered to the Secretary if an MDDP
holder's driving privileges subsequently are suspended, revoked, cancelled or
become otherwise invalid under any provision of the IVC, during the issuance
period of the MDDP. This includes a conviction and subsequent revocation of
driving privileges for the DUI arrest that resulted in the issuance of the
MDDP. The MDDP offender, including an MDDP holder that surrendered his or her
MDDP prior to the suspension, revocation, cancellation or invalidation of
driving privileges, may petition, at a formal hearing conducted pursuant to IVC
Section 2-118, for a restricted driving permit during the period of suspension,
revocation, cancellation or invalidation, if available pursuant to the IVC.
In order to obtain a restricted driving permit pursuant to this Section, the
MDDP offender must also satisfy the other provisions of this Part. Further,
should a restricted driving permit be granted, the MDDP offender may only
operate vehicles in which a properly working BAIID has been installed and is
subject to all of the provisions of the BAIID program.
5) Any
MDDP holder whose MDDP is invalidated as provided in subsection (a)(4), except
those MDDP holders cancelled under IVC Section 6-206.1(c-1), may obtain another
MDDP upon termination of the sanction that led to the invalidation as long as
the offender is still eligible for an MDDP. The offender must notify the
Secretary in writing and submit the statutory permit fee. Upon issuance of an
MDDP, the MDDP holder is subject to all of the provisions of this Section.
6) The
MDDP holder may voluntarily terminate participation in the MDDP program by
written notification and surrender of the permit to the Secretary's BAIID
Division. This voluntary termination does not in any way affect any sanction
imposed under this Section. An offender may also resume participation by
notifying the BAIID Division in writing, but may do so only once during the
term of the suspension, extension or re-suspension due to a violation of the
program.
b) Compliance −
Installation of BAIID/Notification to the Secretary
1) The
MDDP Holder. Upon the issuance of an MDDP under this Section, the Secretary
shall make available a list of certified BAIID providers to the MDDP holder.
The MDDP holder may operate the vehicle for 14 days from the issuance date
stated on the MDDP without the BAIID installed solely for the purpose of taking
the vehicle to a BAIID provider or installer for installation of the BAIID.
The MDDP holder must be the individual who takes the vehicle to the installer
to have the BAIID installed and must have a reference image taken by the
installer at the time of installation. Failure to comply with this requirement
will result in the cancellation of the MDDP issued.
2) The Installer/BAIID
Provider. A BAIID provider or installer must:
A) Be
qualified and comply with all of the procedures and responsibilities set forth
in Section 1001.442;
B) Within
7 days after the date of the installation of the BAIID, notify the Secretary,
in a manner and form specified by the Secretary, that a BAIID has been
installed in the vehicles designated by the MDDP offender;
C) Upon
notification from the MDDP holder, as evidenced by the written form from the
Secretary that the MDDP holder has been found to be indigent, not charge the
MDDP holder for any installation, monthly monitoring, deinstallation fees, or
security deposit that exceeds one month's BAIID rental fee. This waiver of
charges and fees is limited to one vehicle per MDDP holder;
D) Upon
request, make records available to ensure compliance with the required payments
to and reimbursements from the Indigent BAIID Fund.
c) Compliance
− Driving with BAIID. Any MDDP offender receiving an MDDP under this
Section must comply with the following requirements:
1) Operate
only vehicles with an installed, operating BAIID certified by the Secretary
whether the vehicle is owned, rented, leased, loaned or otherwise in the
possession of the MDDP holder, as required by the MDDP issued under this
Section.
2) Except
when a BAIID has been installed that may be read remotely, either take any and
all vehicles operated by the MDDP holder and with a BAIID installed or send the
BAIID to the BAIID provider or installer at least every 60 days, which shall be
referred to as the monitoring period, commencing with the date of installation,
for the purposes of calibration and having a monitor report of the BAIID's
activity prepared and sent to the Secretary by the BAIID provider or installer.
The monitoring period will be 30 days for any MDDP holder whose summary
suspension is extended or who is re-suspended for a violation of the MDDP
program.
3) If a
BAIID has been installed that permits the MDDP offender to mail in a portion of
the BAIID to be read and calibrated, or that allows the BAIID to be read
remotely, bring the vehicle into a BAIID installation site at least once every
6 months so that the BAIID and all related wiring and connections may be
inspected for signs of tampering or circumvention.
4) Within
5 working days after any service or inspection notification, take the vehicle
with the BAIID, installed to the BAIID provider or installer or send the
appropriate portion of the BAIID to the BAIID provider or installer as
instructed for a monitor report.
5) Maintain
a journal of events recording unsuccessful attempts to start the vehicle,
failures to successfully complete a running retest, any problems with the BAIID,
and the name of the driver operating the vehicle at the time of the
event. If BAIIDs have been installed on multiple vehicles, a separate
journal must be kept for each vehicle, recording unsuccessful attempts to start
the vehicle, failures to successfully complete a running retest, any problems
with the BAIID, and the name of the driver operating the vehicle at the time of
the event.
6) Ensure
that the BAIID camera is aimed, and the person using the BAIID is situated, so
that the camera captures a clear and accurate image of the individual blowing
into the BAIID, including a sufficiently wide angle that it will be possible to
determine whether the individual blowing into the BAIID is seated in the
driver's seat and whether a circumvention device has been inserted into the
mouthpiece of the BAIID.
7) Shall
not have a BAIID removed or deinstalled from a vehicle prior to notifying the
Secretary and surrendering the MDDP to the Secretary or the Secretary's
designee.
8) Shall
not commit any of the violations listed in subsection (d).
d) Violations.
Any of the following, when committed by an MDDP holder, constitutes a violation
of the MDDP program:
1) A
conviction or court supervision for any of the offenses listed in IVC Section
6-206.1(c-1);
2) Tampering
or attempting to tamper with, or unauthorized circumvention of, the BAIID,
including the use of any product intended to prevent accurate readings by the
BAIID;
3) A violation of IVC Section
6-206.2;
4) 10 or
more unsuccessful attempts to start the vehicle with a BAIID installed within a
30 day period, excluding a BrAC reading of 0.05 or more;
5) 5 or
more unsuccessful attempts to start the vehicle within a 24 hour period,
excluding a BrAC reading of 0.05 or more;
6) A BrAC reading of 0.05
or more;
7) Failing a running
retest, or failing to take a running retest;
8) Removing the BAIID
without authorization from the Secretary;
9) Failing to utilize the
BAIID as required;
10) Failing
to submit a BAIID for a monitor report in a timely manner;
11) Failing
to bring a vehicle into a BAIID installation site at least once every 6 months
so that the BAIID and all related wiring and connections may be inspected for
signs of tampering or circumvention;
12) Preventing
the camera from taking clear and accurate images of the permittee blowing into
the mouthpiece, including a sufficiently wide angle that it will be possible to
determine whether the individual blowing into the BAIID is seated in the
driver's seat and whether a circumvention device has been inserted into the
mouthpiece of the BAIID.
e) Sanctions
Upon Commission of a Violation. Upon notification of any of the violations in
subsection (d), the Secretary shall take the following action:
1) For
a conviction or court supervision for any of the offenses listed in IVC Section
6-206.1(c-1), or a notification from a BAIID provider or installer that a
physical inspection of any BAIID permittee's vehicle showed any tampering with
or unauthorized circumvention of the BAIID, immediately cancel the MDDP, extend
the suspension as provided for in IVC Section 6-206.1(1), and authorize the
immediate removal/deinstallation of the BAIID. If the MDDP had expired prior
to the Secretary receiving notification of the conviction, supervision or
violation, the Secretary shall re-suspend the MDDP offender as provided for in IVC
Section 6-206.1(l). The MDDP offender may then file a petition for the issuance
of an RDP. The MDDP offender must have a formal hearing pursuant to IVC
Section 2-118 and satisfy all the requirements of this Subpart D in order to
obtain the permit.
2) For
any MDDP holder whose monitor report or other sufficient evidence shows any
tampering or unauthorized circumvention of the BAIID, or who fails to bring his
or her vehicle in for an inspection pursuant to subsection (c)(3), send the
MDDP holder a letter asking for an explanation of the failure to bring the
vehicle in for an inspection or an explanation of the tampering or unauthorized
circumvention. If a response is received within 21 days after the date of the
Secretary's letter and it reasonably assures the Secretary that no violation
occurred, no further action will be taken. If a response is not received
within 21 days or does not reasonably assure the Secretary, the Secretary shall
immediately cancel the MDDP, extend the suspension as provided for in IVC Section
6-206.1(1), and authorize the immediate removal/deinstallation of the BAIID.
If the summary suspension is already terminated prior to the MDDP holder
failing to bring his or her vehicle in for an inspection pursuant to subsection
(c)(3), or prior to the Secretary receiving the monitor report/physical inspection
showing the violation, the Secretary shall re-suspend the MDDP offender as
provided for in IVC Section 6-206.1(1). The MDDP offender may then file a
petition for the issuance of an RDP. The MDDP offender must have a formal
hearing pursuant to IVC Section 2-118 and satisfy all the requirements of this
Subpart D in order to obtain the RDP.
3) For
any MDDP holder whose monitor report shows: 10 or more unsuccessful attempts to
start the vehicle with a BAIID installed, within a 30 day period; or 5 or more
unsuccessful attempts to start the vehicle with a BAIID installed, within a 24
hour period; or any single BrAC reading of 0.05 or more, send the MDDP holder a
letter asking for an explanation of the unsuccessful attempts to start the
vehicle or the BrAC reading. If a response is received within 21 days after
the date of the Secretary's letter and it reasonably assures the Secretary that
no violation occurred, no further action will be taken. If a response is not
received within 21 days or does not reasonably assure the Secretary, the
Secretary shall extend the summary suspension for 3 months. If the summary
suspension is already terminated prior to the Secretary receiving the monitor
report showing the violation, the Secretary shall re-suspend for 3 months.
Should any monitor report show multiple violations, each violation provided for
in this subsection shall be a separate violation requiring a separate 3 month
extension or re-suspension.
4) For
any MDDP holder whose monitor reports show a failure to successfully complete a
running retest, send the MDDP holder a letter asking for an explanation of the
failure to successfully complete a running retest. If a response is received
within 21 days after the date of the Secretary's letter and it reasonably
assures the Secretary that no violation occurred, no further action will be
taken. If a response is not received within 21 days or does not reasonably
assure the Secretary, the Secretary shall extend the summary suspension for 3
months. If the summary suspension is already terminated prior to the Secretary
receiving the monitor report showing the violation, the Secretary shall
re-suspend for 3 months.
5) For
a removal/deinstallation of a BAIID without authorization, including a removal
or deinstallation caused by the MDDP holder's failure to pay lease or rental
fees due to the BAIID provider, the Secretary shall immediately cancel the
MDDP.
6) For
a failure to utilize the BAIID by the MDDP holder as required, the Secretary
shall extend the summary suspension for 3 months. If the summary suspension is
already terminated prior to the Secretary receiving the monitor report showing
the violation, the Secretary shall re-suspend for 3 months.
7) For
a failure to submit a BAIID for a monitor report in a timely manner, the
following procedure will be followed: unless notified by a BAIID provider that
the BAIID has been removed, all monitor reports shall be submitted to the
Secretary within 37 days after installation and within every 37 days thereafter.
If the Secretary fails to receive an MDDP holder's monitor reports within the
37 days, the Secretary will conduct an informal inquiry (will attempt to
contact the BAIID provider and MDDP holder by telephone or e-mail) for the
purpose of determining the cause for this failure. If it is determined or if
it appears that the MDDP holder failed to take in a vehicle with the BAIID or
send the BAIID in for timely monitor reports, then the Secretary will send a
letter to the MDDP holder stating that, if the BAIID is not taken in for a
monitor report within 10 days after the date of the letter, the Secretary will
extend the summary suspension for 3 months, or, if the summary suspension is
already terminated prior to the Secretary receiving the monitor report showing
the violation, the Secretary will re-suspend for 3 months. If the MDDP holder
cannot be located or does not respond to the Secretary's request for
information, the MDDP shall be cancelled or, if the MDDP has expired, the
Secretary shall re-suspend the MDDP as provided for in IVC Section 6-206.1(l).
8) Violations
detected in any one monitoring period shall not, however, result in extensions
or re-suspensions totaling more than six months, except as provided in
subsection (e)(10).
9) If
the MDDP holder is re-suspended for a violation that was not reported to the
Secretary until after the termination of the MDDP holder's summary suspension,
the MDDP holder may obtain another MDDP by notifying the Secretary in writing
and submitting all required fees.
10) When
an image shows that the MDDP permittee has utilized any product that allows the
permittee to avoid blowing directly into the mouthpiece of the BAIID, or when
any step has been taken to prevent a clear and accurate image of the driver and
mouthpiece, the Secretary shall extend the summary suspension for 3 months.
f) Hearing
to Contest Cancellation of MDDP or Extension of the Summary Suspension. Any
MDDP holder whose summary suspension is extended or re-suspended, or whose MDDP
is cancelled as provided for in this Section, may request a hearing to contest
that action. A written request, along with the $50 filing fee, must be
received or postmarked within 30 days from the effective date of the extension,
re-suspension or cancellation. The hearing will be conducted as any other
formal hearing under this Part.
g) MDDPs
− Content. Any MDDPs issued as provided for in this Section shall, in
addition to all other requirements, state at a minimum that:
1) The
MDDP is issued pursuant to the BAIID requirements of this Section and that a
vehicle operated by an MDDP holder must be equipped with a certified,
installed, properly operating BAIID;
2) The
provisions of the MDDP also allow the MDDP holder to drive to and from the
BAIID provider or installer for the purpose of installing the BAIID within 14
days after the issuance date on the MDDP;
3) Once
the BAIID is installed, the MDDP holder may drive the vehicle with the BAIID
properly installed for any purpose and at any time;
4) If
applicable, the MDDP holder qualifies for any modification or waiver of BAIID,
as provided in subsection (i), or employment exemption from BAIID, as provided
in subsection (j).
h) Use
of Monitor Reports. The Secretary shall gather all available monitor reports
and images, and any other information relative to the MDDP holder's performance
and compliance with the BAIID requirements under this Subpart D. The reports,
images and information may be used as evidence at any administrative hearing
conducted by the Secretary under this Part.
i) Modification
or Waiver of BAIID. Upon request of the MDDP holder, the Secretary may
consider a medical or physical BAIID modification or waiver for an MDDP issued
under this Section. When an MDDP holder provides a report from a physician
stating that the MDDP holder is physically unable to produce an adequate breath
sample to operate the BAIID, the Secretary may allow the MDDP holder to install
a BAIID that operates with a lower breath sample requirement. When an MDDP
holder is the owner of only one vehicle, this modification may also be granted
if an immediate family member who resides with the MDDP holder must drive the
vehicle and the immediate family member is unable to provide an adequate breath
sample to operate the BAIID. The Secretary may, at his or her discretion,
obtain a review of the physician's report by the Secretary's Medical Advisory
Board.
j) Employment
Exemption from BAIID Requirements. In determining whether an MDDP holder is
exempt from the BAIID requirements pursuant to the waiver provided for in IVC Section
6-206.1, the following shall apply:
1) The
term "employer" shall not include an entity owned or controlled in
whole or in part by the MDDP holder or any member of the MDDP holder's
immediate family, unless the entity is a corporation and the MDDP holder and
the MDDP holder's immediate family own a total of less than 5% of the
outstanding shares of stock in the corporation. Immediate family shall include
spouse, children, children's spouses, parents, spouse's parents, siblings,
siblings' spouses and spouse's siblings;
2) The
exemption shall not apply when the employer's vehicle is assigned exclusively
to the MDDP holder, or the MDDP holder uses the vehicle for commuting to and
from employment or for other personal use and no person may drive the
exempted vehicle more than 12 hours per day, 6 days per week [625 ILCS
5/6-206.1(a-2)];
3) Appropriate
limits will be established for necessary on-the-job driving. The days, hours
and mileage limits will not exceed those necessary for the accomplishment of
the MDDP holder's primary employment;
4) This
exemption is subject to termination if the Secretary obtains or receives
credible evidence that it is being abused or violated by the MDDP holder, such
as, but not limited to, driving outside the scope of his or her employment, or
driving the employer's vehicle from his or her residence to the place of
employment. Upon obtaining or receiving credible evidence of the abuse or
violation of an exemption, the Secretary shall send the MDDP holder a letter
that requests a response to the evidence. If a response is received within 21
days after the date of the Secretary's letter and it reasonably assures the
Secretary that an abuse or a violation did not occur, no further action will be
taken. If a response is not received within 21 days or does not reasonably
assure the Secretary, the Secretary shall immediately terminate the exemption;
5) The
Secretary will also inform the MDDP holder whose employment exemption is
terminated that he or she remains eligible to have a BAIID installed in his or
her personal vehicle and the employer's vehicle without a hearing. Failure to
have the BAIID installed by the date designated by the Secretary will result in
the termination of the MDDP;
6) The
denial of an exemption and the termination of an exemption may be contested
pursuant to Section 1001.441(k);
7) An
exemption also will be granted to an MDDP holder who can prove that his or her
duties include test driving vehicles not owned by the permittee. The exemption
will be limited to this purpose, and to no more than a 5 mile radius from the
permittee's place of employment.
k) Decertification
of BAIID Provider or BAIID and Denial of BAIID Provider Certification or BAIID
Certification. The Secretary must notify the MDDP holder of the
decertification or denial of certification of a BAIID provider or of a
particular type of BAIID. The MDDP holder must then select a new BAIID
provider or type of BAIID from the list of approved BAIID providers maintained
by the Secretary. The MDDP holder must inform the Secretary of that selection
within 7 days after the receipt of notification from the Secretary. The MDDP
holder must complete registration with a new BAIID provider and/or installation
of a new BAIID within 21 days after the receipt of the notification from the
Secretary. Failure to complete these steps within the 21-day period may result
in cancellation of the MDDP holder's MDDP. All costs related to any change in
a BAIID provider or a BAIID shall be paid by the MDDP holder, unless the
Secretary has deemed the MDDP holder indigent.
l) Indigent BAIID Fund
1) Any
BAIID provider who installs a BAIID under the MDDP program must pay 5% of the total
gross revenue received by each contract entered into with an MDDP holder who is
not found to be indigent by the Secretary, referred to in this subsection as
the surcharge.
A) The
surcharge shall include only those fees normally charged an MDDP holder for
installation, monthly rental and monitoring, and deinstallation of the BAIID
during the term of the MDDP holder's statutory summary suspension.
B) The
surcharge shall be submitted to the Secretary by the 8th of each
month and shall include all surcharges incurred during the previous month. The
surcharge must be submitted in the form of a check, made payable to the
Secretary of State, or by electronic transfer as agreed to by the Secretary and
the BAIID provider.
C) Should
the summary suspension of an MDDP holder be extended or a re-suspension issued
under the MDDP program and the holder continue to participate in the program,
the surcharge is due for the period of extension or re-suspension.
2) Any
BAIID provider who installs a BAIID under the MDDP program for an MDDP holder
who has been found to be indigent by the Secretary may apply for reimbursement
for any fees incurred as set out in subsection (b)(2)(C). A provider must
submit an invoice to the Secretary by the 8th of the month following
the end of each quarter of the Secretary of State's fiscal year, which must
include the name and driver's license number of each indigent client, as well
as a brief description of the services provided and the date those services
were rendered. The Secretary will authorize payments in accordance with IVC Section
6-206.1(o). No payment for the quarter may be authorized if the provider fails
to submit an invoice within the time set forth in this subsection (l)(2) or if the provider fails to submit a check or electronic
transfer for the surcharge within the time frame set forth in subsection
(l)(1)(B). If a provider has submitted an invoice to the Secretary that
under-reports the number of indigent clients served in the previous quarter,
the provider may not submit a subsequent invoice seeking reimbursement for
services provided to the unreported indigent clients.
3) The
Secretary may audit the records of BAIID providers or installers to ensure
compliance with the required payments to and reimbursements from the Indigent
BAIID Fund.
4) An
MDDP offender may be declared indigent by the Secretary if the MDDP offender's
total monthly income is 150% or less of the federal poverty guidelines, as
evidenced by a certified transcript of the United States or State of Illinois tax return for the most recently completed calendar year.
A) For
an MDDP offender who has not filed a United States or State of Illinois tax return for the most recently completed calendar year, indigency may be
declared if:
i) The
MDDP offender is currently receiving Temporary Assistance to Needy Families
(TANF) benefits, as evidenced by documentation from the Illinois Department of
Human Services;
ii) The
MDDP offender is currently receiving Supplemental Nutrition Assistance Program
(SNAP) benefits, as evidenced by documentation from the Illinois Department of
Human Services.
B) For
the MDDP offender who has not filed a United States or State of Illinois tax
return for the most recently completed calendar year and is not currently
receiving TANF or SNAP benefits, indigency may be declared if the MDDP offender
is receiving Supplemental Security Income (SSI) from the Social Security
Administration and the MDDP offender completes an affidavit under penalty of
perjury swearing the total amount of income received from all sources,
including SSI, is 150% or less of the federal poverty guidelines.
5) An
MDDP holder's indigency status shall be valid for the length of the MDDP. Any
MDDP holder whose summary suspension is extended beyond the length of the MDDP,
who wishes to continue participation in the MDDP program and wishes to be
declared indigent, must submit current documentation as set forth in subsection
(l)(4).
m) Reciprocity
with Other States. The Secretary will honor the BAIID requirements imposed by
other states on Illinois drivers and drivers licensed in other states, for
offenses committed in other states, and will reciprocate other states'
recognition of BAIID requirements imposed by Illinois on drivers licensed in Illinois, or licensed in other states for offenses committed in Illinois.
(Source: Amended at 44 Ill.
Reg. 14243, effective August 19, 2020)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.450 NEW HEARINGS
Section 1001.450 New
Hearings
a) Relief Denied. If a petitioner is denied relief after a
formal hearing conducted pursuant to Subpart A, either for cause (including the
failure to satisfy the requirements to obtain a restricted driving permit
within the time allowed) or upon default, another formal hearing will not be held
regarding the same relief requested at the last hearing until at least 90
calendar days have elapsed since the date of the hearing. Furthermore, a
request for another formal hearing will not be accepted for 30 days from the
date of the last hearing. A petitioner who is denied relief after a formal
hearing must wait 30 calendar days before presenting himself or herself for an
informal hearing on a petition for the same relief
requested at the formal hearing.
b) Decision Pending. The Department will not accept a request
for a hearing from a petitioner or a party requesting a hearing to contest an
action taken by a department of the Secretary of State while a decision is
pending on a hearing regarding the same issue or issues.
(Source: Amended at 31 Ill.
Reg. 6185, effective May 1, 2007)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.460 REQUESTS FOR MODIFICATION OF REVOCATIONS AND SUSPENSIONS
Section 1001.460 Requests for Modification of
Revocations and Suspensions
a) No
Rescission. Revocations and suspensions will not be rescinded, except as
provided by law or rule. Mandatory revocations and suspensions cannot be
reduced or modified in any way, except as provided in subsections (e) and (g).
b) Modification
Limited. Suspension periods are set by Department of Driver Services rule (see
92 Ill. Adm. Code 1040) to apply equally to all persons.
c) Modification
Defined; Disqualifying Factors. For purposes of this Section, modification
means that a discretionary revocation may be reduced to a 12 month suspension,
a reduction in the length of a suspension, or the termination of a suspension
on or by a specific date, or as soon as the termination can be processed by the
Secretary of State. The following factors disqualify a petitioner from being
considered for modification:
1) Prior
fatal or Type A injury collisions with a disposition (either court supervision
or conviction) for a citation issued in conjunction with or as a result of the
collisions, within 2 years prior to the date of the hearing. For purposes of
this subsection (c)(1), a "Type A Injury" is as defined in IVC Section
11-501.6(g);
2) A
prior suspension under the Illinois Safety Responsibility Law [625 ILCS 5/Ch.
7] within 2 years prior to the date of the hearing;
3) A
disposition for any moving violations within 6 months prior to the date of the
hearing;
4) A
revocation or suspension of driving privileges for any moving violations within
5 years prior to the date of the hearing;
5) The
record of the proceeding contains credible evidence that the petitioner's
conduct, for which his or her driving privileges are suspended or revoked,
resulted in the petitioner being charged with a felony.
d) Factors
Considered in Petitions for Modification of Discretionary Revocations and
Suspensions. Modification may be granted for good cause shown. "Good
cause" means that the petitioner has the burden of showing why an
exception should be made to serving the full term of a revocation or
suspension. If the petitioner shows good cause, then consideration for
modification may be given to a petitioner under the conditions listed in this
subsection, but the petitioner also is allowed to submit other considerations
for modification.
1) Extent
of Petitioner's Culpability. The Secretary will consider the petitioner's
intent, knowledge, conduct and role in the facts of the event that resulted in
the revocation or suspension of his or her driving privileges, and the attitude
exhibited by the petitioner prior to and/or at the hearing.
A) In
regard to a suspension entered pursuant to IVC Section 6-206(a)9, this means
that the petitioner is able to present credible evidence that he or she did not
have a specific intent to provide false information on an application for a
driver's license or driving permit.
B) In
regard to a suspension entered pursuant to IVC Section 6-206(a)10, this means
that the petitioner is able to provide credible evidence that he or she did not
use alcohol or other drugs and that there was no reasonable potential for the
petitioner to use alcohol or other drugs while in the possession of a driver's
license or identification card issued to another person. Furthermore, the
petitioner must be able to show a credible and legitimate reason for being in
possession of someone else's driver's license or identification card.
C) In
regard to a suspension entered pursuant to IVC Section 6-206(a)14, this means
that the petitioner is able to present credible evidence that he or she has
cooperated with law enforcement authorities in the investigation, apprehension
and/or prosecution of persons for violations of the Illinois Vehicle Code,
particularly those related to underaged drinking or the possession, display,
use, attempted use, distribution or manufacture of fraudulent or fictitious
driver's licenses, permits or identification cards not issued to the
petitioner.
2) The
seriousness of the offense and the petitioner's attitude (acceptance of
responsibility, expressions of genuine remorse, etc.).
3) The
petitioner must be able to demonstrate, by clear and convincing evidence, that
he or she is at low risk of repeating his or her behavior in the future. The
Secretary reserves the discretion to require the petitioner to satisfy the
requirements of this Subpart D if there is evidence that the petitioner may be
a user of alcohol or any other drugs to a degree that renders the petitioner
incapable of safely driving a motor vehicle, as a condition of modifying the
suspension or averting a cancellation of the petitioner's driving privileges;
4) The
early termination of a suspension will be considered when, in addition to
satisfying the other conditions of this subsection (d), the petitioner also
provides a compelling justification or mitigating circumstances that warrant
the early termination.
e) Rescission,
Termination or Modification of Revocations Entered Pursuant to IVC Section
6-205(a)16.
1) Petitions
to rescind, terminate or modify a revocation entered pursuant to IVC Section
6-205(a)16 are considered at a formal hearing (see 625 ILCS 5/2-118);
2) In
order for a revocation to be rescinded, the petitioner must prove that his or
her conduct was not the proximate cause of the death;
3) The
Secretary will apply the criteria in subsections (c) and (d) in deciding
whether to modify or terminate a revocation;
4) Modification
or termination will not be granted unless the petitioner presents a certificate
of completion of any driver remedial or rehabilitative program.
f) Limitations
on the Terms of Modification of Discretionary Revocations and Discretionary
Suspensions. A discretionary revocation may only be reduced to a 12 month
suspension. However, a discretionary revocation shall not be reduced to a 12
month suspension and then the suspension reduced. A discretionary
suspension may be reduced by no more than 6 months, unless it is terminated. A
discretionary suspension shall be terminated only under the most compelling circumstances
and in the interest of fairness and justice, except as provided in subsection
(g).
g) Credit
for Out-of-State or Military Offenses. Credit may be given to Illinois
licensed drivers if they commit an offense or engage in conduct outside the
State of Illinois or on a military base that results in revocation or
suspension of their out-of-state or military base driver's license and driving
privileges and that is entered prior to their Illinois driver's license being
suspended or revoked pursuant to IVC Section 6-206(a)(6) or (a)(24) for the
same or a substantially similar offense. In order to be eligible to receive
credit for the time spent suspended or revoked out-of-state or on a military
base prior to being suspended or revoked in Illinois, the petitioner must
demonstrate either that the prior suspension or revocation created a previous
undue hardship as it pertains to hardships recognized under this Part or that
the petitioner resided temporarily in the other state or military base prior to
his/her Illinois driver's license being suspended or revoked in Illinois. The
credit shall be given against the Illinois suspension or revocation for the
same length of time actually served on the out-of-state or military suspension
or revocation prior to the effective date of the Illinois suspension or
revocation. A discretionary revocation will be modified to a suspension
and terminated early, or the date of eligibility for reinstatement of Illinois
driving privileges shall be advanced.
(Source: Amended at 40 Ill. Reg. 834,
effective December 31, 2015)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.465 CANCELLATION OF DRIVING PRIVILEGES; HEARING TO CONTEST AND SHOW CAUSE HEARING
Section 1001.465 Cancellation of Driving Privileges;
Hearing to Contest and Show Cause Hearing
a) 14
Day Notice of Cancellation or Denial. The Secretary of State reserves the
discretion to enter an order cancelling or denying the driving privileges of
any person or petitioner, pursuant to IVC Sections 6-103, 6-108, 6-207 and/or
6-201(a), if the Secretary obtains specific, credible evidence that gives
reasonable grounds to believe that the person or petitioner presents an
imminent threat to the public safety and welfare or is a user of alcohol or any
other drug to a degree that renders the person incapable of safely driving a
motor vehicle (see Section 6-103.4), or is otherwise not in compliance with the
rules of the Secretary. The cancellation or denial will be effective 14 days
after a letter of notification and the Order of Cancellation or Denial is sent
to the petitioner or person whose driving privileges are being cancelled. The
Order of Cancellation or Denial will state the grounds for the cancellation and
inform the petitioner or person of the right to contest the Order.
1) If a
petition to contest is received or postmarked prior to the effective date of
the Order of Cancellation or Denial, the cancellation shall be stayed pending
the outcome of the hearing to contest.
2) If a
petition is received and filed within 60 days after the effective date of the
Order of Cancellation or Denial, the cancellation shall remain in effect
pending the outcome of the hearing.
3) If a
petition to contest is received more than 60 days after the effective date of
the Order of Cancellation or Denial, then the Order of Cancellation or Denial
shall remain in effect and a hearing to contest shall not be granted.
b) Show
Cause Hearing. The Secretary of State reserves the discretion to require any
person or petitioner to show cause why driving privileges should not be cancelled
or denied, pursuant to IVC Sections 6-103, 6-108, 6-207 and/or 6‑201(a),
if the Secretary obtains specific, credible evidence that gives reasonable
grounds to believe that the person or petitioner may present an imminent threat
to the public safety and welfare or may be a user of alcohol or any other drug
to a degree that renders the person incapable of safely driving a motor vehicle
(see IVC Section 6-103.4), or might otherwise not be in compliance with the
rules of the Secretary.
1) The
person or petitioner will be issued a Notice to Show Cause, at the last known
address, in the manner provided by statute and the rules of the Secretary of
State. The Notice will specify the time, date and location of the hearing at
which the person or petitioner will be required to show cause.
2) The
failure of the person or petitioner to respond to the Notice to Show Cause will
be processed as a default and will result in the entry of an Order of
Cancellation.
c) Alcohol/Drug
Related Cases. If the proposed cancellation or denial is based upon evidence
that the person or petitioner may be a user of alcohol or any other drug to a
degree that renders that person or petitioner incapable of safely driving a
motor vehicle, the person or petitioner must satisfy the requirements of this
Subpart D in order for the cancellation to be terminated or to be issued any
further driving relief (see IVC Section 6-103.4).
d) All
hearings conducted pursuant to this Section shall be conducted as formal
hearings under IVC Section 2-118.
e) The
driving privileges of a restricted driving permit holder whose alcohol/drug use
was classified as High Risk Dependent shall not be cancelled based only on
BAIID violations that show the permittee has failed to maintain abstinence.
(Source: Amended at 45 Ill. Reg. 14985,
effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.470 RENEWAL, CORRECTION AND CANCELLATION OF RDPS
Section 1001.470 Renewal,
Correction and Cancellation of RDPs
a) The holder of an RDP that was granted as a result of a formal
hearing decision, excluding BMO RDPs, if still valid or expired for 30 days or
less, may apply to renew a RDP through an informal hearing, using the
procedures set forth in Subpart C and providing all documentation required in
Subpart D in cases which are alcohol/drug related. To avoid any lapse in
holding a valid BMO RDP a hearing to renew the BMO RDP, either formal or
informal, must take place prior to the expiration date of the BMO RDP. A BMO
RDP may not be renewed at an informal hearing if a monitor report indicated
there were BAIID violations while driving on the RDP for which an explanation
was not provided to the BAIID Division that reasonably assured the Division
that a violation did not occur. A lapse in holding a valid BMO RDP shall not
result in the restart of the BAIID 1,826 day period, if the BMO permittee keeps
the BAIID installed, but the BMO permittee must remain on a RDP until the
petitioner has completed five full years on a BMO RDP.
b) Petitioners who are required to apply for relief at a formal
hearing, or who choose to apply for relief at a formal hearing and who are
issued an RDP, may apply for additional RDPs for different purposes at informal
hearings. Additionally, petitioners who are issued one type of RDP but denied
another type of RDP at a formal hearing may apply for the denied type of RDP at
an informal hearing upon a showing of a relevant change of circumstances.
c) Corrected RDPs will be issued to make necessary changes to the
information on an RDP if the changes are documented and verified. Corrected
RDPs will expire on the same date as the original permit.
d) RDPs will be cancelled or invalidated pursuant to Sections
6-103, 6-113, 6-201, 6-205(a), and 6-206(a) of the Code. The Secretary of
State reserves the authority to cancel any restricted driving permits
previously issued to a petitioner when the preponderance of the evidence taken
at a subsequent hearing demonstrates that the petitioner can no longer be
considered a low risk to repeat the past abusive behavior and be a safe and
responsible driver, has regressed in the recovery from an alcohol/drug problem,
or otherwise in any way is no longer in compliance with the standards specified
in this Subpart D.
(Source: Amended at 45 Ill. Reg. 14985, effective November 12, 2021)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.480 UNSATISFIED JUDGMENT SUSPENSIONS
Section 1001.480 Unsatisfied
Judgment Suspensions
a) A hearing is not necessary where the judgment has been
satisfied, or stayed by court order, or become unenforceable under Sections
12-108, 2-1601, and 13-218 of the Code of Civil Procedure [735 ILCS 5/2-1601,
12-108, and 12-218]. A certified or file stamped copy of the release, stay
order, or half-sheet or docket sheet shall be filed with the Safety and
Financial Responsibility Division of the Department of Driver Services, 2701 S.
Dirksen Parkway, Springfield, Illinois.
b) If the judgment has not been satisfied or stayed by court
order, nor become unenforceable, no relief will be granted by the Secretary of
State's Office.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.485 REINSTATEMENT APPLICATION BASED UPON ISSUANCE OF DRIVERS LICENSE IN A STATE WHICH IS A MEMBER OF THE DRIVER LICENSE COMPACT
Section 1001.485
Reinstatement Application Based Upon Issuance of Drivers License in a State
Which is a Member of the Driver License Compact
a) A petitioner whose license is revoked in Illinois, is issued
full driving privileges by a state that is a member of the Driver License
Compact, and who requests reinstatement based upon that fact must request a
hearing to apply for reinstatement to determine whether the license was
properly issued.
b) In determining whether the license was properly issued by the
member state, the following factors shall be in issue:
1) whether one year has passed from the effective date of the
revocation;
2) whether the petitioner disclosed to the issuing state that the
individual's privileges were withdrawn by the State of Illinois at the time of
the application for the license in the other state;
3) whether the issuing state verified eligibility with the
National Driver Register;
4) whether Illinois issued a clearance authorization indicating
that the petitioner is eligible for full driving privileges in Illinois;
5) whether the issuing state complied with all other requirements
of the Driver License Compact;
6) such other issues as may be deemed relevant at the hearing.
c) The burden of proof is upon the petitioner who must show by
clear and convincing evidence that the license was properly issued by the
member state. Proof shall consist of the appropriate documents certified by
the other state or jurisdiction.
d) If the petitioner cannot show that the license was properly
issued by the member state, then prior to any reinstatement of driving
privileges, all of the provisions of this Part 1001 are applicable and must be
complied with.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.490 INVALIDITY
Section 1001.490 Invalidity
If any portion of this Subpart
shall be held by a court of competent jurisdiction to be invalid, such holding
shall not affect the remaining portions.
(Source: Amended at 26 Ill. Reg. 9380, effective June 13, 2002)
SUBPART E: FORMAL MEDICAL HEARINGS
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.500 APPLICABILITY
Section 1001.500
Applicability
This Subpart shall apply to all
formal hearings conducted pursuant to the Illinois Vehicle Code relating to the
cancellation, denial, or restriction of driving privileges of the Petitioner as
the result of a determination by the medical review panel as provided in 92
Ill. Adm. Code 1030.16. Prior to a determination by a medical review panel, no
person shall have a right to a formal medical hearing with the Secretary of
State.
(Source: Added at 17 Ill. Reg. 8528, effective June 1, 1993)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.510 DEFINITIONS
Section 1001.510 Definitions
"Board" means the
Illinois Medical Advisory Board appointed by the Secretary pursuant to Section
6-902 of the Driver License Medical Review Law of 1992 (625 ILCS 5/6-902).
"Board
Member" means an Illinois Medical Advisory Board member.
"Chairperson"
means the chairperson of the Illinois Medical Advisory Board.
"Medical Review Panel"
means a panel of three board members selected by the chairperson who, at the
request of a Petitioner, review a board member's initial determination
regarding the issuance of driving privileges. See 92 Ill. Adm. Code 1030.16.
This review is required prior to the Petitioner being eligible to apply for a
formal medical hearing under this Subpart E.
"Secretary"
means the Illinois Secretary of State.
(Source: Added at 17 Ill. Reg.
8528, effective June 1, 1993)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.520 PROCEDURE
Section 1001.520 Procedure
Hearings held under this Subpart
shall be conducted in accordance with all of the rights, privileges, and
procedures as set forth in Subpart A of this Part (92 Ill. Adm. Code
1001.Subpart A), except as otherwise provided for in this Subpart E.
(Source: Added at 17 Ill. Reg. 8528, effective June 1, 1993)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.530 CONDUCT OF MEDICAL FORMAL HEARINGS
Section 1001.530 Conduct of Medical Formal Hearings
a) Due
to the confidentiality of the evidence involved in these hearings, they are not
open to the public and the evidence obtained and any order entered shall not be
available to the public.
b) These
hearings shall be conducted in Chicago or Springfield, depending upon the
convenience of the hearing committee members and the Petitioner.
c) No
board member shall be subject to depositions, interrogatories, or subpoena.
All documents used by any board member in making a determination shall be made
available, however, upon request by the Petitioner, if it is relevant to the
issues to be decided at the formal medical hearing.
d) No prehearing conference
will be allowed prior to the date of the hearing.
e) The
burden of proof rests with the Petitioner to show by clear and convincing
evidence that driving privileges should be granted.
f) Every hearing shall be
conducted by a hearing committee which shall consist of:
1) A
hearing officer who will preside over the hearing and perform the following
duties:
A) Inform
the Petitioner of the purpose of the hearing.
B) Inform
the Petitioner of the scope of relevant medical issues which were determined by
the medical review panel.
C) Read
into the record the entries contained in the Petitioner's driving abstract.
D) Rule
on motions, the admissibility of evidence, and determine all other nonmedical
related issues pending before the hearing committee.
2) Three
(3) members of the board, who shall be selected by the chairperson or his/her
designee, based upon the member's expertise or specialty in the field of
medicine at issue. These members shall determine all medical related issues
pending before the committee, based upon the medical criteria found in 92 Ill.
Adm. Code 1030.18.
g) The hearing shall
proceed in the following manner:
1) The
hearing officer will introduce the individual members of the hearing committee.
2) The
hearing officer will explain the scope of the medical issues and read into the
record the contents of the petitioner's driving abstract.
3) The
Petitioner will be allowed to present evidence in the form of documents and/or
testimony consistent with the scope of the hearing.
4) The
hearing committee members will be allowed to ask questions of the petitioner
and/or any witnesses regarding the medical evidence presented. The hearing
officer may ask questions concerning procedural and other matters as he/she
deems necessary.
5) At
the conclusion of the Petitioner's evidence and questioning by the hearing
committee, the Petitioner will be allowed to make a closing statement.
6) After
any closing statement, the hearing committee shall render a decision regarding
the issues presented, in whole or in part, except that the matter may be taken
under advisement to review pertinent evidence.
h) After
the hearing, the hearing committee shall prepare a written report which shall
include findings of fact, conclusions of law, recommendations of the hearing
committee, and the order of the Secretary.
1) The
hearing officer shall, with the aid of the board members, prepare the findings
of fact, conclusions of law, recommendations to the Secretary, and a proposed
order of the Secretary, based upon the recommendations of the board members
regarding the medical issues.
2) The
Secretary will then enter an order following the majority recommendations of
the board members selected pursuant to subsection (f)(2) above. This order
will be a final, appealable administrative order within the meaning of the
Administrative Review Law [735 ILCS 5/3-101 et seq.].
i) The
Office shall send a copy of the written report to the Petitioner and any
attorney of record.
(Source: Added at 17 Ill. Reg.
8528, effective June 1, 1993)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.540 SUBSEQUENT HEARINGS
Section 1001.540 Subsequent
Hearings
If a petitioner is denied the
relief requested at a formal medical hearing, another such hearing will not be
granted unless the petitioner's case is again reviewed by the medical review
panel after the submission of new evidence.
(Source: Added at 17 Ill. Reg. 8528, effective June 1, 1993)
SUBPART F: ZERO TOLERANCE SUSPENSION OF DRIVING PRIVILEGES; PERSONS UNDER THE AGE OF 21 YEARS; IMPLIED CONSENT HEARINGS; RESTRICTED DRIVING PERMITS
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.600 APPLICABILITY
Section 1001.600
Applicability
The
hearings referred to in this Subpart F are conducted pursuant to Section 2-118
of the Illinois Vehicle Code, the authority granted to the Secretary of State
in Section 11-501.8(e) of the Code, and this Part.
(Source: Amended at 31 Ill.
Reg. 6185, effective May 1, 2007)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.610 DEFINITIONS
Section 1001.610 Definitions
All of the definitions contained in Subparts A, C, and D
shall apply where applicable.
"Drugs" means drugs as
defined in Section 3 of the Pharmacy Practice Act of 1987 [225 ILCS 85/3].
"Independent source"
means a parent, legal guardian, person in loco parentis, spouse, roommate of
the petitioner, or member of the clergy or the religious organization in
question, all of whom must have firsthand knowledge of the matters verified.
"Medical or pharmacological
expert" means a person licensed under the Medical Practice Act of 1987
[225 ILCS 60], or similar law of another jurisdiction, to practice medicine in
all of its branches, or a person licensed under Section 3 of the Pharmacy
Practice Act of 1987 [225 ILCS 85/3], or similar law of another jurisdiction,
or any laboratory certified by the Illinois Department of Public Health
pursuant to 77 Ill. Adm. Code 510.120, or any person certified by either the
American Board of Forensic Toxicology or the American Board of Toxicology.
"Medicine" means and
includes all drugs intended for human use approved by the United States Food
and Drug Administration.
"Recommended dosage"
means the strength, quantity and frequency of use of the medicine as
recommended by a medical or pharmacological expert, or as set forth by the
label directions or other packaging information for over-the-counter medicines.
"Religious service or
ceremony" means the coming together of a group of persons with the same or
similar religious beliefs for the purpose of exercising those beliefs.
(Source: Amended at 24 Ill. Reg.
19257, effective December 15, 2000)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.620 BURDEN OF PROOF
Section 1001.620 Burden of
Proof
The petitioner carries the
burden of proof at all proceedings brought pursuant to Section 11‑501.8
of the Code. The standard of proof is by the preponderance of the evidence,
except as set forth in Section 1001.650 of this Subpart F. The petitioner must
carry this burden of proof on each and every issue contested at the implied
consent hearing.
(Source: Added at 19 Ill. Reg. 6667, effective May 1, 1995)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.630 IMPLIED CONSENT HEARINGS; RELIGIOUS EXCEPTION
Section 1001.630 Implied Consent Hearings; Religious
Exception
A petitioner who asserts that his/her alcohol concentration
of more than 0.00 was the result of his/her consumption of alcohol in the
performance of a religious service or ceremony must prove at a minimum:
a) the
attendance of, and the petitioner's use of alcohol at, a religious service or
ceremony within a reasonably recent period of time before the issuance of the
traffic citation which led to the request to submit to the chemical test; the
type and amount of alcohol consumed by the petitioner at the religious service
or ceremony; the time and location of the service or ceremony; and whether the
petitioner consumed any other alcohol prior to or after the religious service
or ceremony. The evidence on these matters must be submitted in the form of
written verification or testimony from at least two (2) independent sources.
The petitioner's self-report will not be considered dispositive; and
b) that
alcohol is used in the regular course of the type of religious service or
ceremony attended by the petitioner; the purpose of the alcohol in the
religious ritual; the type and amount of alcohol regularly used at said service
or ceremony.
The evidence on these matters must
be submitted in the form of written verification or testimony from a member of
the clergy or the governing body of the religious denomination whose service or
ceremony the petitioner claims he/she had attended before the issuance of the
traffic citation.
(Source: Added at 19 Ill. Reg.
6667, effective May 1, 1995)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.640 IMPLIED CONSENT HEARINGS; MEDICAL EXCEPTION
Section 1001.640 Implied Consent Hearings; Medical
Exception
a) A
petitioner who asserts that his/her alcohol concentration of more than 0.00 was
the result of his/her ingestion of medicine that contained alcohol which was
prescribed or recommended by a person licensed to prescribe or distribute
medications must prove at a minimum:
1) that
the medicine was ingested within a reasonably recent period of time before the
issuance of the traffic citation which led to the request to submit to the
chemical test and that the medicine was ingested according to the prescribed or
recommended dosage. The evidence on these matters may be submitted in the form
of the petitioner's self-report. However, if the medicine was prescribed or
recommended to be ingested over an extended period of time, in other words, for
more than two (2) days, then the evidence of the petitioner's ingestion of the
medicine must be submitted in the form of written verification or testimony
from at least one (1) independent source; and
2) that
the medicine ingested by the petitioner was prescribed or recommended by a
person properly licensed to prescribe medications; that the medicine was
prescribed or recommended to the petitioner; that the medicine was prescribed
or recommended to the petitioner at the time of the issuance of the traffic
citation which led to the request to submit to the chemical test; the
prescribed or recommended dosage for the petitioner; the alcohol content of the
dosage; and the duration of the prescription and/or the time frame within which
the medicine was prescribed or recommended. The evidence on these matters must
be submitted in the form of written verification or testimony from the person
who prescribed or recommended the medicine to the petitioner.
b) A
petitioner who asserts that his/her alcohol concentration of more than 0.00 was
the result of his/her ingestion of over-the-counter medicine that contained
alcohol and was not prescribed or recommended by a person licensed to prescribe
or distribute medications must prove:
1) why
the petitioner was using the medication at the time in question; that the
ingestion of the medicine was consistent with the recommended dosage stated on
the packaging label and other information which is enclosed with the medicine;
and that the medicine was ingested within a reasonably recent period of time
before the issuance of the traffic citation which led to the request to submit
to the chemical test. The evidence on these matters may be submitted in the
form of the petitioner's self-report; and
2) what
the recommended dosage was; and the alcohol content of the recommended dosage.
The evidence on these matters must, at a minimum, be submitted in the form of
copies of the packaging label and other information enclosed with the medicine
at issue.
(Source: Added at 19 Ill. Reg.
6667, effective May 1, 1995)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.650 REBUTTABLE PRESUMPTION
Section 1001.650 Rebuttable Presumption
a) It is
presumed that any petitioner who registers a BAC which is 0.02 or more, at the
time of the arrest in question, will not be considered as an exception under
paragraph (e) of Section 11-501.8 of the Code. Any petitioner who claims the
religious or medical exception under these circumstances must rebut the
presumption with clear and convincing evidence.
b) Such evidence shall
include, but not be limited to, the following:
1) the
evidentiary requirements of Sections 1001.630 and 1001.640 of this Subpart F;
and
2) written
verification or testimony from a medical or pharmacological expert which must
include, at a minimum, the following information:
A) what,
if any, alcohol concentration the alcohol, used in a religious ceremony, or
medicine, taken in its prescribed or recommended dosage, would produce in the
petitioner's blood or breath within the time frame of first ingestion to the
time of the taking of the BAC test, given the petitioner's body weight at the
time of the issuance of the traffic citation; and
B) given
the BAC reading of the petitioner following the arrest in question, what dosage
or amount of alcohol/medicine would have to be ingested by the petitioner to
achieve such a reading; and
C) how
the expert determined or formulated the above opinions, i.e., what formulae,
treatises, or other sources were used.
c) In
determining if the petitioner presented clear and convincing evidence to rebut
the presumption that the exception does not apply, the Secretary will consider
all of the evidence presented as well as treatises and reference manuals used
and/or written by forensic scientists on the subject of the pharmacological and
toxicological aspects of the ingestion of ethyl alcohol.
(Source: Added at 19 Ill. Reg.
6667, effective May 1, 1995)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.660 ALCOHOL AND DRUG EDUCATION AND AWARENESS PROGRAM
Section 1001.660 Alcohol and
Drug Education and Awareness Program
a) Prior to consideration of the issuance of an RDP, any one
whose driving privileges and driver's license are suspended under IVC Section
11-501.8 must complete the Secretary of State alcohol/drug education awareness
program (program), and successfully complete a questionnaire prepared by the
Secretary of State.
b) The program content will be set out in a Secretary of State
publication (publication) which shall include, but not be limited to,
information regarding the following areas:
1) The Zero Tolerance law and its effect upon driving privileges;
2) The DUI law and its effect upon driving privileges;
3) Other laws relating to the use/possession of alcohol by those
under the age of 21;
4) Alcohol as a drug;
5) Effects of alcohol and drugs on drivers, with emphasis on the
youthful driver;
6) Social processes that influence drinking;
7) Physiological and pharmacological effects of alcohol and other
drugs including their residual impairment on normal levels of driving
performance;
8) Statistics regarding crashes involving alcohol/drugs;
9) Prevention of alcohol/drug related problems;
10) Other areas deemed appropriate.
c) The publication may be obtained from the Secretary of State
website or by contacting the Secretary of State, Department of Administrative
Hearings, in advance of the hearing. The publication will be sent to the
petitioner, who must review it prior to any hearing for an RDP.
d) Prior to the hearing for an RDP, the petitioner will be
required to complete a questionnaire. It will contain questions regarding
information contained in the publication, and any other information deemed
appropriate by the Secretary. The questions forming the questionnaire will be
selected from a pool of questions, and will be changed from time to time. The
petitioner must answer 75% of the questions correctly in order to successfully
complete the questionnaire.
e) Driving relief will not be granted until the petitioner
successfully completes the questionnaire. If the petitioner does not
successfully complete it, the petitioner must review the publication and may
retake the questionnaire no sooner than the following day.
f) Once the petitioner successfully completes the questionnaire,
the hearing for the RDP will proceed as in any other hearing for an RDP.
(Source: Amended at 40 Ill. Reg. 834, effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.670 PETITIONS FOR RESTRICTED DRIVING PERMITS
Section 1001.670 Petitions
for Restricted Driving Permits
a) Investigative Evaluation Required. Notwithstanding
other provisions of this Part, petitioners who apply for an RDP pursuant
to IVC Section 11-501.8(e) of the Code must submit to an investigative
alcohol/drug evaluation, as defined in Section 1001.410 of this Part, as part
of the Secretary's investigative process, when the evidence shows that:
1) the petitioner, on any occasion, submitted to a chemical test or
preliminary breath test and registered an alcohol concentration between 0.04
and 0.08, or failed a test for the presence of other drugs; or
2) the
petitioner may be a user of alcohol or any other drug to a degree which renders
him/her incapable of safely driving a motor vehicle (see IVC Section 6-103.4);
or
3) the
petitioner has multiple zero tolerance suspensions on his or her driving record
(regardless of whether the petitioner took or refused the tests); or
4) the
petitioner has a previous DUI disposition on his or her driving record,
including one reported by the PDPS.
b) Uniform Report Required. Petitioners who apply
for an RDP pursuant to IVC Section 11-501.8(e) must submit to an alcohol/drug
evaluation uniform report, as defined in Section 1001.410 of this Part, as part
of the Secretary's investigative process, when the evidence shows that:
1) the
petitioner, on any occasion, submitted to a chemical test or preliminary breath
test and registered an alcohol concentration of 0.08 or more, or failed a test
for the presence of other drugs; or
2) the
petitioner's driving record reflects a DUI disposition, as defined in Section
1001.400; or
3) the
petitioner has multiple zero tolerance suspensions on his or her driving record
(regardless of whether the petitioner took or refused the tests); or
4) the
petitioner has a previous DUI disposition on his or her driving record,
including one reported by the PDPS.
c) Rehabilitative Activity Required; Waiver. The
petitioner is required to complete any recommended and/or required
rehabilitative activity that pertains to the evaluation's classification of
his/her use/abuse of alcohol/drugs or provide a written waiver thereof, prior
to the issuance of any restricted driving permit.
(Source: Amended at 40 Ill. Reg. 834,
effective December 31, 2015)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.680 FORM AND LOCATION OF HEARINGS
Section 1001.680 Form and Location of Hearings
a) Formal Hearing Required to Contest Suspension. The
implied consent hearings conducted pursuant to Section 11-501.8 of the Code (to
contest the suspension) shall be conducted as formal hearings pursuant to
Subpart A of this Part.
1) A
request for an implied consent hearing conducted pursuant to Section 11-501.8
must be sent to one of the following four (4) locations:
A) Office
of the Secretary of State, Dept. of Administrative Hearings, 17 North State
Street, Suite 1200, Chicago, Illinois 60602, 312/793-3722.
B) Office
of the Secretary of State, Dept. of Administrative Hearings, 54 North Ottawa Street, Joliet, Illinois 60432,
815/740-7171.
C) Office
of the Secretary of State, Dept. of Administrative Hearings, Michael J. Howlett
Bldg., Rm. 207, Springfield, Illinois 62756, 217/524-0124.
D) Office
of the Secretary of State, Dept. of Administrative Hearings, 218 South 12th
Street, Mount Vernon, Illinois 62864, 618/242‑8986.
2) The
request must be in writing, preferably on a form supplied by the Secretary. In
any event, it must contain, at a minimum, the petitioner's name, address,
driver's license number, which of the above four locations would be preferred
by the petitioner, and specify which issues the petitioner will raise at the
hearing.
3) The
hearing shall be held at a location designated by the Department. The factors
that will be considered are, but not limited to: the venue of the citation
issued; the location preferred by the petitioner; the location of the
witnesses, including the police officer who issued the citation which led to
the request to submit to the chemical test and the police officer who
administered the test; the availability of a hearing location.
b) Petitions for Restricted Driving Permits. The
hearings on petitions for restricted driving permits conducted pursuant to
Section 11-501.8 of the Code may be conducted as formal hearings, pursuant to
Subpart A of this Part, or as informal hearings, pursuant to Subpart C of this
Part, according to the preference of the petitioner.
1) Petitioners
are encouraged, however, to begin the hearing process with an informal hearing.
2) If
the petitioner requests a formal hearing to obtain a restricted driving permit,
said formal hearing shall be held at one of the four locations set forth in
subsection (a)(1) of this Section as designated by the petitioner.
3) Such
a hearing may only be held within 45 days after the date that the Secretary may
issue a permit as provided in Section 6-208.2 of the Code.
4) Every
petitioner is required to bring a copy of his/her sworn report evidencing the
suspension to any informal hearing.
c) Hearings Conducted Separately. The implied consent
hearings will be conducted separately from the hearings for restricted driving
permits.
(Source: Amended at 31 Ill. Reg. 6185,
effective May 1, 2007)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.690 INVALIDITY
Section 1001.690 Invalidity
If any provision of this Subpart
is held by a court of competent jurisdiction to be invalid, such holding shall
not affect the remaining portions hereof.
(Source: Added at 19 Ill. Reg. 6667, effective May 1, 1995)
SUBPART G: MOTOR VEHICLE FRANCHISE ACT
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.700 APPLICABILITY
Section 1001.700
Applicability
This Subpart applies to the
organization and implementation of the Motor Vehicle Review Board and to any
hearing conducted pursuant to Section 12 of the Motor Vehicle Franchise Act,
hereinafter referred to as the Act (815 ILCS 710). The Secretary shall act as
the repository for all documents and records and as the clerk for the filing of
all documents necessary for the hearing process involving the Act.
(Source: Added at 20 Ill. Reg. 8328, effective June 12, 1996)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.710 DEFINITIONS
Section 1001.710 Definitions
"Act"
means the Motor Vehicle Franchise Act [815 ILCS 710].
"Board"
means the Motor Vehicle Review Board.
"Complainant"
means the dealer/franchise requesting the hearing.
"Days" means, unless
otherwise stated, calendar days when referring to a filing deadline.
"Manufacturer/distributor"
means any person who manufacturers, assembles, distributes, or sells at
wholesale under a franchise agreement five or more new motor vehicles within
Illinois during the calendar year.
"Monitor" means a Board
member, including the Chairperson, assigned to a specific case by the
Chairperson for the purpose of reviewing all matters relevant to that case and
making a recommendation to the Board as to the final disposition of the case.
"Motor
vehicle" means any motor driven vehicle required to be registered under
"The Illinois Vehicle Code". Beginning January 1, 2010, the term
"motor vehicle" also includes any engine, transmission, or rear axle,
regardless of whether it is attached to a vehicle chassis, that is manufactured
for installation in any motor-driven vehicle with a gross vehicle weight rating
of more than 16,000 pounds that is required to be registered under the Illinois
Vehicle Code. [815 ILCS 710/2(a)].
"Party"
means the Complainant or Respondent.
"Respondent"
means the manufacturer/distributor allegedly violating the Act.
"Secretary" means the
Secretary of State or the Secretary's duly appointed designee.
(Source: Amended at 47 Ill. Reg. 10998,
effective July 10, 2023)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.720 ORGANIZATION OF MOTOR VEHICLE REVIEW BOARD
Section 1001.720
Organization of Motor Vehicle Review Board
a) The Chairperson shall be the contact person with the
administrative personnel of the Secretary in order to implement the provisions
of the Act. The Chairperson may delegate the duties of the Board to the
remaining members.
b) The selection by the Board of a Chairperson shall be done with
the advice and consent of the Secretary.
(Source: Added at 20 Ill. Reg. 8328, effective June 12, 1996)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.730 MOTOR VEHICLE REVIEW BOARD MEETINGS
Section 1001.730 Motor Vehicle Review Board Meetings
a) Annual
Meetings
The annual meeting of the Board
shall be held at a Secretary of State office or facility in Chicago or
Springfield as determined by the Board Chairperson. In addition to those
responsibilities set forth in the Act, the following shall be accomplished at the
annual meeting, but not limited thereto:
1) Formally
adopt this Subpart G as its regulations for the holding and conducting of
hearings concerning all matters within its powers;
2) Determine
the duties and responsibilities of the members, if necessary;
3) Adopt
a tentative schedule of regular meetings for the year;
4) Identify
issues to be addressed by the Secretary to help implement the Act, including a
review of the current administrative rules and any suggested amendments
thereto;
5) Determine
if there are any suggested legislative changes to the Act for written
submission to the Secretary.
b) Regular
Meetings
1) The
Board shall hold meetings throughout the year, at least quarterly, for the
following purposes, but not limited thereto:
A) Reviewing
notices of protest filed and determining the Hearing Officer and Member to be
assigned;
B) Reviewing
recommendations from hearing officers and exceptions and briefs filed by the
parties;
C) Issuing
of final orders; and
D) Identifying
issues that should be addressed at the next annual meeting.
2) The regular
meetings may be held in person, or by other electronic means at the discretion
of the Board Chairperson, in compliance with 5 ILCS 120/2.01 and 5 ILCS 120/7,
and shall originate at an office or a facility of the Secretary in either
Chicago or Springfield. Information regarding meeting schedules and agendas
can be found here: https://www.ilsos.gov/departments/administrative_hearings/mvrb.html.
c) Public
Comment
Any person shall be permitted an
opportunity to address the Board regarding only the items on the meeting
agenda.
1) At
the start of each meeting, the Board Chairperson shall ask if any person wishes
to address the Board during the public comment period. At that time, any person
wishing to address the Board subject to the Open Meetings Act [5 ILCS 120/2.06],
must state their name and the agenda item they wish to address publicly in a
short statement.
2) The Board
Chairperson shall allow each person an amount of time, up to three minutes, to
address the Board. Should comments be made relating to topics not on the
agenda, those statements shall be stricken from the record and that person
shall yield the floor immediately. Should the person utilize more time than allowed,
the Board Chairperson may move to strike that person's comments from the
record. If a new agenda item is placed on the agenda during a meeting, additional
time for public comment will be granted for that new item.
3) A person
may request additional time to address the Board at the conclusion of their
allotted time. The Board shall then vote whether to extend the person's
allotted time to speak in five-minute increments, or if the Board shall proceed
to the existing agenda.
4) Without
explicit motion made and passed by the Board for extension of time for public
comment, the public comment period shall not exceed 15 minutes.
5) Should
no persons indicate a desire to address the Board during the public comment
period of the meeting, the Board Chairperson shall declare the public comment
period as closed and the Board shall proceed, uninterrupted, to the agenda.
(Source: Amended at 49 Ill. Reg. 1323,
effective January 15, 2025)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.740 BOARD FEES
Section 1001.740 Board Fees
a) Annual compensation for
Board members shall be as follows:
1) The
Chairperson: $25,000;
2) The
remaining members: $20,000.
b) All
travel and other necessary expenses incurred by the members while performing
official duties will be paid according to the State of Illinois Travel
Regulations, promulgated by the Illinois Travel Regulation Council, and the
Secretary of State Travel Control System, promulgated by the Secretary of State
Travel Control Board. The members shall submit a detailed voucher at the end
of each month setting forth the date, amount and the purpose of the expenditure
and attach necessary receipts. Said voucher may be the same voucher submitted
for compensation.
c) All
clerical, secretarial, office space, postage, equipment and other material
needed to conduct business under the Act will be arranged by the Secretary.
(Source: Added at 20 Ill. Reg.
8328, effective June 12, 1996)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.750 NOTICE OF PROTEST
Section 1001.750 Notice of Protest
a) A Notice
of Protest from a complainant must be in writing and contain at a minimum the
following information:
1) Name,
address, and dealer license number of the complainant;
2) Name
and address of the respondent;
3) Name
and address of any other dealer/franchise involved;
4) The Sections
of the Act allegedly violated;
5) A
brief description of the facts supporting the complainant's position;
6) A
copy of any documents received from the respondent and any documents sent by
the complainant to the respondent or other dealer/franchise involved in the
protest;
7) The
date notified in writing by the manufacturer of the proposed action; and
8) The
date of the most recent franchise or service agreement between the dealer and
the manufacturer.
b) In
determining if the notice has been timely filed, the postmark shall control if
mailed; if hand delivered, the date of delivery as evidenced by a Secretary receipt
stamp mark; if faxed, the date of the fax.
c) At
the time of filing, the complainant must submit one original and four copies of
the Notice of Protest in any one of the following ways: mailed or delivered to
the Illinois Secretary of State, Room 200, Howlett Building, Springfield,
Illinois, 62756; mailed or delivered to the Illinois Secretary of State, Room
1200, 17 N. State, Chicago, Illinois, 60602; or faxed to the Springfield office
at (217) 524-1561.
d) Before a hearing will be held on the Notice of Protest, both
the complainant and respondent must file an appearance with the hearing officer
and provide evidence that the fees prescribed in Section 1001.790 were paid to
the Board.
(Source: Amended at 47 Ill. Reg. 10998,
effective July 10, 2023)
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CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.760 HEARING PROCEDURES
Section 1001.760 Hearing
Procedures
a) Receipt of a Notice of Protest shall be handled as follows:
1) Any Notice of Protest received by the Secretary will be sent
to the Chairperson, who shall review the notice to see if it has been timely
filed, complies with Section 1001.750, and falls under the purview of the Act.
A copy shall also be sent to the respondent.
2) If the notice meets all of the above requirements:
A) The Chairperson will assign a monitor and a hearing officer to
the case. The hearing officer will be selected from a list of possible hearing
officers supplied by the Secretary. The selection shall be made on a rotating
basis taking into consideration the expertise and qualifications needed for
each case.
B) The Chairperson will have the Secretary enter an order setting
the date, time, and place of the hearing. This date must be within 60 days
after the date of the order. The hearing will be held at a location determined
by the Secretary. Any motion to dismiss or strike the Notice of Protest must be
filed within 21 days after the date of receipt of the order setting the
hearing.
C) The hearing officer may continue the hearing date more than 90
days after the date of the Board's initial order scheduling the hearing only if
the parties agree to the continuance and the hearing officer finds that, due to
the complexity of the issues involved, a meaningful hearing could not be held before
then.
D) The hearing officer will ensure that the fees
required by Section 1001.790(a), have been paid by both the complainant and the
respondent or, if not paid, enter a judgment for fees accordingly.
3) If the notice does not meet all of the requirements of
subsection (a)(1), the Chairperson will have the Secretary notify the
complainant and the respondent of the defect and no hearing will be set.
4) If the Chairperson determines that the Notice of Protest does
not fall under the purview of the Act in that the alleged violation is not
under the Act or that an exception under the Act applies:
A) The complainant will be so notified and given 14 days to
respond. If no response is received within that time, the Chairperson shall
cause a summary order to be entered denying the relief requested, which shall
be a final, appealable order.
B) If a response is received, as provided in Section 1001.750,
copies of the file will be given to each Board member who will review the
matter and recommend to the Chairperson whether there appears to be a
reasonable possibility that a violation of the Act occurred.
i) If a majority of the Board determines that there is such a
reasonable possibility, a hearing shall be scheduled.
ii) If a majority of the Board determines that there is not such
a reasonable possibility, the Chairperson shall cause a summary order to be
entered denying the relief requested. This will be a final appealable order.
b) All hearing-related issues, such as rules of evidence,
discovery, continuances, etc., are governed by Section 29 of the Act. To the
extent that an issue is not covered in that Section, the administrative hearing
rules found in Subpart A shall govern. Specifically, the disqualification of a
hearing officer will be in accordance with Section 1001.100(b). Enforcement of
discovery procedures shall comply with Illinois Supreme Court Rule 219.
c) The standard of proof is by the preponderance of the evidence.
d) Once a matter is scheduled for hearing, the filing of
subsequent pleadings and other documents in the matter may be accomplished by
serving a copy each upon the hearing officer and the other party at their
respective addresses of record and three copies upon the Secretary in the
manner and at the location identified in Section 1001.750.
e) Once the proposed decision is served upon the parties, any
party wishing to file exceptions and present a brief to the Board may do so by
serving one original and five copies upon the Secretary in the manner and
location identified in Section 1001.750 and sending a copy to the other party.
Upon receipt of those documents, the Secretary will forward the documents to
the Board members, who shall review the exceptions and briefs. The monitor will
then make a recommendation to the full Board. The monitor may consult with the
hearing officer who heard the case.
f) If a case ends in a settlement or otherwise by agreement of
the parties, the parties may waive, in writing or on the record, the 10-day
statutory period for filing exceptions and briefs. In that case, the hearing
officer shall so note in the proposed decision. Upon receipt of the proposed decision,
the Secretary shall forward it directly to the Chairperson, who will then enter
a final order on behalf of the Board.
(Source: Amended at 47 Ill. Reg. 10998, effective July 10, 2023)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.770 CONDUCT OF PROTEST HEARING
Section 1001.770 Conduct of Protest Hearing
a) These
hearings shall be held in Chicago or Springfield at a location determined by
the Secretary, taking into consideration the location and/or request of the
complainant.
b) The
hearing officer does not represent any party at the proceeding, but merely facilitates
the hearing by presiding over it and performing the following duties in
addition to those set forth in the Act:
1) Inform
the parties of the relevant issues to be decided;
2) Rule
on motions, the admissibility of evidence and all other legal issues raised;
3) Prepare
a proposed decision and submit it to the Chairperson and have the Secretary
serve it upon the parties to the proceeding.
c) The hearing shall
proceed in the following manner:
1) The
hearing officer will identify the parties and set forth the violations of the
Act alleged by the complainant.
2) The
party bearing the burden of proof as set forth in Sections 4 or 29 of the Act
shall then present evidence in the form of documents and/or testimony relevant
to the alleged violation of the Act. If Section 4 or 29 of the Act does not
specify which party has the burden of proof for a particular violation of the
Act, the burden of proof shall be on the respondent to show that there is good
cause for its action or inaction.
3) The
other party to the proceeding shall then be allowed to present its evidence.
4) The
hearing officer may ask questions as deemed necessary.
5) At
the conclusion of the taking of evidence, each party shall be allowed to make a
closing statement.
6) The
hearing officer will then advise the parties that in accordance with Section 30
of the Act all expenses incurred by the Board in conducting the hearing shall
be paid by the parties equally and further that if the complainant
substantially prevails it will be awarded attorney's fees and costs in
accordance with Section 13 of the Act. The hearing officer may also advise the
complainant that, in the event that complainant may substantially prevail, it
should submit as soon as possible a detailed billing setting forth the cost
allowed under Section 1001.790(b) it incurred in the hearing process.
7) The
hearing officer shall then take the matter under advisement, review the
evidence and make a written recommendation to the Board by submitting it to the
Secretary who shall then forward it to the Board members and serve it upon the
parties.
d) The
monitor shall review the recommendation, any exceptions and briefs submitted,
and make a recommendation to the Board.
e) The
Board shall then review the case file, the recommendation of the hearing
officer, any exceptions and briefs, and the recommendation of the monitor. The
Board shall then issue a final order. The final order shall be forwarded to
the Secretary who shall then serve it upon the parties.
1) If
the final order is such that the complainant does not substantially prevail,
the final order shall include the amount of Board expenses payable by each
party.
2) If
the final order is such that the complainant substantially prevails and is
based upon a hearing officer's written recommendation that includes an award of
attorney's fees and costs as allowed under Section 1001.790(b), it shall
include an award of attorney's fees and costs.
3) If
the final order is such that the complainant substantially prevails and is
based upon a hearing officer's written recommendation that does not include an
award of attorney's fees and costs as allowed under Section 1001.790(b):
A) The
complainant shall be allowed to submit to the hearing officer within 10 days
after receipt of the final order a detailed motion requesting the payment of
the costs allowed under Section 1001.790(b) that it incurred in the hearing
process. A copy of the motion shall also be sent to the respondent and 3
copies to the Secretary. If the complainant fails to submit the motion in a
timely manner, the complainant will be deemed to have waived its right to an
award of such costs.
B) The
respondent shall have 10 days from receipt of the motion to file an answer with
the hearing officer. A copy shall also be sent to the complainant and 3 copies
to the Secretary.
C) The
hearing officer may, if he/she deems it necessary, set a hearing on the motion
requesting the payment of costs.
D) The
hearing officer shall then take the motion under advisement and make a written
recommendation to the Board on the award of attorney's fees and costs by
submitting it to the Secretary who shall then forward it to the Board members
and serve it upon the parties.
E) The
monitor shall review the recommendation, the pleadings filed, any exceptions
and briefs submitted, and make a recommendation to the Board.
F) The
Board shall than review the recommendation of the hearing officer, the pleading
filed, any exceptions and briefs, and the recommendation of the monitor. The
Board shall then issue a final order assessing the Board's expenses and
awarding attorney's fees and costs to the complainant. The final order shall
be forwarded to the Secretary who shall then serve it upon the parties.
(Source: Amended at 23 Ill. Reg.
692, effective January 15, 1999)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.780 MANDATORY SETTLEMENT CONFERENCE
Section 1001.780 Mandatory Settlement Conference
a) The
hearing officer assigned to the case may order a mandatory settlement
conference (conference) if it is felt that such a conference would promote any
of the following:
1) A
clarification of issues and/or violations;
2) A
settlement of the matter without a hearing;
3) What
each party expects from the hearing process and would settle for without a
hearing;
4) If a
hearing is necessary, an estimate of the length of the hearing, the number of
witnesses and volume of documentation, and an estimate of the hearing costs to
be assessed to the parties.
b) If
the hearing officer orders a conference, it shall be done by notifying the
Secretary who shall then send a Notice of Mandatory Settlement Conference to
each party. This notice shall advise the parties of the time and place of the
conference and that failure to appear, be prepared, or have authority to settle
the matter could result in any of the actions set forth in Section 29 of the
Act.
c) A
conference may be conducted in person or by telephone as deemed appropriate by
the hearing officer.
d) If
the conference results in a settlement of the matter to the satisfaction of the
parties, the hearing officer shall issue a written recommendation and if
applicable the procedure set forth in Section 1001.760(f) of this Subpart may
be followed.
e) If
the conference does not result in a settlement of the matter, the hearing shall
proceed as scheduled unless a motion to dismiss is granted on the grounds of
the protest being without merit and/or frivolous. In such case, the hearing
officer shall issue a proposed order and all of the ensuing procedures set
forth in Section 1001.770 of this Subpart relating to the issuance of a final
order shall be followed.
(Source: Amended at 23 Ill. Reg.
692, effective January 15, 1999)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.785 TECHNICAL ISSUES
Section 1001.785 Technical Issues
a) If a
notice of protest involves a violation of Section 4(e)(8) of the Act in which a
mileage determination is relevant, that determination shall be made by the
submission of a land survey performed and certified by a Illinois professional
land surveyor. The survey shall measure from a point at the current location
that is the closest point to the relocation site to a point at the relocation
site that is the furthest from the current location. This measurement shall be
a straight line as the crow flies, not the most direct route by vehicle. Each
party may submit such a survey or may agree upon one surveyor whose
determination shall govern. If the parties each submit a survey showing
different results, the hearing officer shall have a survey completed by a
surveyor approved by the Secretary which shall govern, the cost of which shall
be paid by the parties.
b) In
Section 4(e)(8)(C) of the Act, further away from the nearest dealer of the
same line make shall mean that the new proposed dealer location is further
from the nearest dealer of the same line make when measured from the new
location to its nearest dealer of the same line make as compared to a
measurement from the original dealer location to its nearest dealer of the same
line make. The measurement shall be made as described in subsection (a) above.
(Source: Amended at 23 Ill. Reg.
692, effective January 15, 1999)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.790 HEARING EXPENSES, FEES, AND COSTS
Section 1001.790 Hearing
Expenses, Fees, and Costs
a) Expenses assessed against each party to the hearing provided
in Section 30 of the Act shall include, but not be limited to, the following:
1) A $250 processing fee;
2) A refundable $2,500 hearing deposit;
3) Any hearing officer expense incurred, regardless of whether a
hearing or mandatory settlement conference is held or the case is dismissed by
agreement of the parties or order of the Board;
4) Any other expenses incurred by the Board or the Secretary
after the filing of a Notice of Protest directly relating to that particular
case, regardless of whether a hearing or mandatory settlement conference is
held or the case is dismissed by agreement of the parties or order of the
Board.
b) Costs that are to be assessed against the party that has not
substantially prevailed, as required in Section 13 of the Act, must be
reasonable and include the following:
1) All expenses incurred by the Board as provided in subsection
(a) above;
2) Attorney's fees;
3) Expert witness fees;
4) Court reporting and deposition expenses;
5) Witness fees;
6) Document production, photocopies, and preparation of trial
exhibits;
7) Postage, mailing, faxing, or other electronic communication
expenses;
8) Any other expense that the Board deems appropriate in a
particular case.
c) Attorney's fees and expert witness fees awarded to a party will
be based upon the hourly rate or fee that is usual and customary for the area
in which the hearing is held. Neither shall include transportation, lodging,
or meal expenses.
d) Late penalty fee. If the liable party under Section 13 of the
Act fails to pay any fees assessed in excess of the $2,500 hearing deposit
within 60 days of the date of the “Notice of Hearing Costs and Fees”, the Board
will assess a late fee of $2,500 against that party for failure to pay fees in
a timely manner. The Board, subject to administrative review, may rule that
the $2,500 hearing deposit and the additional $2,500 late fee shall be used to
pay any remaining hearing costs and expenses due.
(Source: Amended at 47 Ill. Reg. 10998,
effective July 10, 2023)
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.795 INVALIDITY
Section 1001.795 Invalidity
If any portion of this Subpart
shall be held by a court of competent jurisdiction to be invalid, such holding
shall not affect the remaining portions hereof.
(Source: Added at 20 Ill. Reg. 8328, effective June 12, 1996)
SUBPART H: MISCELLANEOUS
| TITLE 92: TRANSPORTATION
CHAPTER II: SECRETARY OF STATE
PART 1001
PROCEDURES AND STANDARDS
SECTION 1001.800 EXTENSION OF HEARING DATES
Section 1001.800 Extension of Hearing Dates
a) Pursuant
to the power vested in him or her by Section 2-104(b) of the Motor Vehicle Code
and Gubernatorial Executive Order number 2020-08 and subsequent Executive
Orders that extend the effectiveness of Executive Order 2020-08, the Secretary
of State extends the time periods for conducting hearings and for issuing
orders pursuant to Section 2-118(a) of the Illinois Vehicle Code as follows:
1) For
all hearings that were held on or before March 9, 2020, but for which final
orders have not been entered as of June 1, 2020, final orders shall be entered
on or before October 1, 2020.
2) For
all hearing requests received on or before June 1, 2020, but for which no
hearing has been held as of June 1, 2020, a hearing shall be held not later
than October 1, 2020, and final orders for those hearings shall be entered not
later than 120 days after the date of the hearing.
3) For
all hearing requests received after June 1, 2020, but before July 1, 2020, a
hearing shall be held within 120 days after the date on which the request was
received, and final orders for those hearings shall be entered not later than
120 days after the date of the hearing.
b) The
extensions of time provided for in this Section shall not apply to any hearing
requests received on or after July 1, 2020.
(Source: Added at 44 Ill. Reg. 18734,
effective November 13, 2020)
Section 1001.APPENDIX A BAIID Regions and Minimum Installation/Service Center Site Location Guidelines (Repealed)
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