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THE EFFECT OF A KENTUCKY DUI CONVICTION ON AN ILLINOIS LICENSED DRIVER AND HOW TO DEAL WITH IT

You may be appointed to represent an Illinois resident who was arrested for DUI while traveling in Kentucky. In addition to questions about what is likely to happen as a result of the prosecution in Kentucky, you also need to know the impact on your client's Illinois driver's license. This article will provide you with answers to your client's questions. For starters, a conviction for DUI in any state will result in the automatic revocation of an Illinois driver's license. In addition, the refusal to submit to chemical testing, (breath, blood and/or urine) after an arrest for DUI will result in the suspension of an Illinois driver's license. These items will be discussed separately.

LICENSE REVOCATIONS

A) Effective Date and Duration

The Illinois Secretary of State will automatically revoke the driver's license of a resident upon receipt of a report of any conviction for DUI or a similar offense where the charge is the same or substantially similar to the offense of DUI as defined in the Illinois Motor Vehicle Code. Some states have statutory schemes that provide for different impairment levels of DUI. A reduction or amendment of the pending charges to a lower impairment level will still result in a revocation in Illinois as Illinois does not have any graduated scheme. Therefore, to avoid a license revocation, any amendment or reduction, if possible, must be to an offense that will be recognized separately (i.e. Reckless Driving) under the Illinois Motor Vehicle Code.

Assuming the case will result in a conviction, it usually takes several weeks for the report of the conviction to reach the Illinois Secretary of State. However, upon receipt, the Secretary of State immediately serves a Notice of Revocation upon the affected driver by mailing the Notice to the address listed with the Secretary of State's office. The revocation's effective date is normally within a few days of mailing. If your client does not live at the address listed on his or her Illinois driver's license, your client should immediately change his or her address directly with the Secretary of State's Drivers Services Department as official notices from the Secretary are not forwarded and your client's failure to actually receive notices does not affect the validity or effective date of the revocation.

In Illinois, license revocations are for a minimum of one year if the driver has never been previously convicted of DUI. Two DUI convictions within a 20 year period will result in a minimum revocation of five years, and three convictions within 20 years results in a minimum revocation of ten years. A fourth conviction for DUI renders the driver permanently ineligible from applying for an unrestricted license in Illinois. It is the policy of the Secretary of State's office not to fully reinstate an otherwise eligible driver until they have first been issued a Restricted Driving Permit (RDP) and drove on it without incident for at least 9 months.

B) Restricted Driving Permit (RDP)-Eligibility and Conditions

Once a revocation is effective, the next issue is when, and under what conditions, your client becomes eligible to apply for an RDP. In Illinois, an RDP may be issued for: a) driving to and from work as well as within the scope of your client's employment-related duties; b) to allow your client's transportation or that of a family member for necessary medical care; c) to and from certain alcohol rehabilitative activities; (i.e. AA meetings), and d) for your client's to travel to and from classes at an accredited educational institution. The Secretary of State also will not issue permits for more than 12 hours a day or 6 days a week. If your client has traffic tickets pending in any court (other than a DUI with a pending suspension) or your client is also suspended or revoked for other reasons, your client is ineligible to apply for an RDP until the other matters are resolved.

Before your client is eligible to apply for an RDP, your client must obtain an alcohol evaluation from an agency licensed by the Illinois Office of Alcohol and Substance Abuse (OASA), and complete the treatment recommended at a treatment service provider licensed by OASA. Depending on the treatment level at which your client is classified by the evaluation, other requirements may also apply. The various treatment levels and other requirements are as follows:

Level 1/Minimal Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours). Note: Level 1 can only be recommended if you, at a minimum: a) have no prior DUI dispositions or suspensions; b) submitted to chemical testing with a resulting blood alcohol level of less than .15; and c) were not diagnosed with any other recognized symptoms of substance abuse or dependence.

Level 2M/Moderate Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours) and an Early Intervention Counseling Program (Minimum of 12 hours). Note: Level 2M can only be recommended if you, at a minimum: a) have no prior DUI dispositions or suspensions; b) submitted to chemical testing with a resulting blood alcohol level of .15 to .19; and c) were not diagnosed with any other recognized symptoms of substance abuse or dependence.

Level 2S/Significant Risk - Completion of an Alcohol/Drug Risk Education course (usually 10 hours), Substance Abuse Treatment, (Minimum of 20 hours) and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). Note: Level 2S will, at a minimum, be recommended if you: a) have at least one prior DUI disposition or suspension; and/or b) submitted to chemical testing with a resulting blood alcohol level of at least .20; and/or c) were diagnosed with other recognized symptoms of substance abuse.

Level 3 High Risk/Dependent - Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). In addition, at a hearing, your client will have to submit proof of establishment of an ongoing support/recovery program (i.e. regular attendance at AA meetings for at least 6 months and having obtained an AA sponsor). Your client will also have to document at least 12 consecutive months of abstinence from alcohol and drugs.

Level 3 High Risk/Non-Dependent - Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of Aftercare a/k/a Continuing Care (usually 2-3 hours a month for 6 consecutive months). In addition, at a hearing your client will have to submit proof of at least 12 consecutive months of non-problematic use of alcohol (or abstinence if it had been recommended by an evaluator or treatment service provider) as well as abstinence from drugs.

Once the foregoing conditions applicable to your client have been met, your client will need to obtain an updated alcohol evaluation from either the original evaluator or the treatment service provider. If your client has never previously been revoked for a DUI conviction, your client is eligible for the appropriate type of administrative reinstatement hearing at this point. However, if your client has previously been revoked for another DUI conviction, your client is ineligible for a hearing until the revocation has been in effect for at least one year.

C) Informal vs. Formal Reinstatement Hearings

The next step is to determine the type of applicable reinstatement hearing. An informal hearing is available if your client is seeking an RDP and/or full reinstatement and has not previously been convicted of DUI or had a statutory summary suspension from a previous DUI. If not, your client must apply for relief through a formal hearing.

Informal hearings are conducted at many Secretary of State Drivers Service facilities throughout the Illinois. There is no requirement that an informal hearing be requested in writing. Your client may retain an attorney for the hearing. Informal hearings are normally conducted on a "first come-first served" basis. Your client must submit, at a minimum: the original alcohol evaluation and, if necessary, an updated evaluation; appropriate documentation verifying completion of the recommended level of counseling; a letter verifying employment schedules and any scope of employment driving that may be required and/or a current school schedule, and, if applicable, appropriate letters documenting abstinence and/or ongoing support group (i.e. AA) involvement. At the hearing, it is your client's burden to establish by clear and convincing evidence that: 1) the alcohol and/or drug problem has been resolved; 2) that your client will be a safe and responsible driver and the issuance on an RDP will not endanger the general public; and 3) an undue hardship is currently being suffered as a result of the inability to legally operate a motor vehicle.

The decision from the informal hearing is usually mailed to your client within three to four weeks after the hearing. If your client is approved for an RDP, the letter will be accompanied by a set of instructions on additional steps that may be necessary, such as filing insurance proof, taking a driving test, etc. Once your client receives the permit, your client must drive on it for at least nine months without incident before your client will be considered eligible for full reinstatement. This requires another informal hearing for which your client will have to obtain an updated evaluation. If your client was denied at the informal hearing, the letter will explain the reason(s) for the denial, i.e., inconsistencies between your client's testimony and the documents submitted, improper documentation, etc. Once the problem has been corrected, your client may have another informal hearing, provided it has been at least 30 days since the last hearing. The testimony at an informal hearing is not recorded or transcribed in any way. The only "record" is a form filled out by the hearing officer and submitted to a review board along with the documentation submitted by you. Finally, there are no appeal procedures following an informal hearing.

If your client is ineligible for informal hearings, your client must proceed with a formal hearing. Formal hearings differ from informal hearings in a variety of ways. Initially, formal hearings are only available in Chicago, Joliet, Springfield or Mount Vernon. A request for a formal hearing is made in writing by your or your client's attorney. The Secretary of State's office then mails a Notice of Hearing to your client (and attorney if applicable). The Notice sets the date, time and place of the hearing and is accompanied by a list of the documentation required to be submitted at the hearing. Once the hearing date has been assigned, it can only be continued for good cause shown.

A formal hearing is conducted by an appointed hearing officer who administers an oath to your client (and any witnesses), takes testimony, issues subpoenas upon request, and rules on objections made during the hearing. The Secretary of State is represented by an appointee who acts as a prosecutor during the hearing. Your client's burden of proof (resolution of alcohol/drug problem, safe driver and undue hardship) is the same as described above for informal hearings. Official notice may be taken of the decisions of any prior hearings as well as any documents (i.e., evaluations, treatment documents, Notices of Summary Suspensions) previously submitted. The hearing is recorded either by an electronic recording system or a court reporter. If requested, a transcript (or copy of the cassette tape of the hearing) can later be ordered by your client at your client's expense. After the conclusion of the hearing, the hearing officer reviews the entire record, makes findings of fact and conclusions of law, and prepares a recommendation. This is then sent to a review board which either adopts or rejects the recommendation and a written Order is prepared and mailed to your client and attorney, usually within 6 to 8 weeks. If your client was approved for an RDP, the Order will be accompanied by a set of instructions on additional steps that may be necessary, such as filing insurance proof, taking a driving test, etc. Once your client receives the permit, your client must drive on it for at least 9 months without incident before your client will be considered eligible for full reinstatement. This requires another formal hearing for which your client will have to obtain an updated evaluation and any applicable letters regarding abstinence, employment and support group attendance. If your client was denied relief at the formal hearing, the Order will set forth in detail the reason(s) for the denial, i.e., inconsistencies between your client's testimony and the documents submitted, improper documentation, etc. If your client is denied relief, your client must wait 4 months before your client is eligible for a subsequent hearing. The Order constitutes a final administrative decision which is subject to review under the Illinois Administrative review Law.

D) Breath Alcohol Ignition Interlock Devices (BAIID)

In addition to the foregoing requirements, your client may also be required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on his or her car as a further condition of the issuance of an RDP. Simply stated, a BAIID is a breathalyzer wired into the ignition system of an automobile. Before a BAIID-equipped car can be started, the driver must provide a breath sample into the device. If the sample registers above the alcohol setpoint (currently 0.025 breath alcohol concentration), the car is rendered incapable of starting, or "locked out". If your client meets any of the following criteria your client will be designated "BAIID Eligible Petitioners," must have formal hearings and must have a BAIID device installed within 14 days of the issuance of any RDP:

1) Any petitioner who had a DUI arrest on or after January 1, 1982 which resulted in the loss of driving privileges who then received driving relief after a formal or informal hearing and thereafter received another DUI resulting in another loss of driving privileges;

2) Any petitioner who received a Judicial Driving Permit (JDP) and within three years after the date the JDP was issued, received another DUI and had to seek driving relief at an administrative hearing;

3) Any petitioner classified as Level 3 Dependent with at least six but less than 12 months of abstinence from alcohol and/or drugs at the time of the hearing;

4) Any petitioner with three DUI dispositions if:

a) The last DUI arrest occurred within three years of the date of the hearing; or

b) Any of the DUI dispositions involved a breath or blood concentration of 0.20 or more.

5) Any petitioner with four or more DUI dispositions.

When the RDP is mailed to a BAIID Eligible Petitioner, it is accompanied by a list of approved installers where the device can be obtained. The petitioner has 14 days to have the device installed and can only operate the vehicle for the purpose of obtaining the BAIID device until it has been installed. Any violation of this requirement will result in the immediate cancellation of the RDP.

STATUTORY SUMMARY (IMPLIED CONSENT) SUSPENSIONS

An Illinois licensed driver arrested in another state for DUI who subsequently refused to submit to chemical testing will have their license suspended by the Illinois Secretary of State upon receipt of a report from the State where the incident occurred.

The Illinois Vehicle Code does not specify the length of the suspension as it is classified as "discretionary". However, the Secretary of State's office typically will issue a six-month suspension, the same duration applicable to a statutory summary suspension for a first-time offender who refuses chemical testing in Illinois after being arrested for a DUI. The affected driver presumably has a right to a judicial or administrative hearing in the circuit court of venue for the arresting agency to contest the arrest and/or the "refusal." In addition, the driver can both contest the suspension at a formal hearing, and/or request the issuance of an RDP. If the driver is only seeking an RDP, that can be done at a formal hearing. If the driver is subsequently convicted of the DUI charge, then the length of the implied consent suspension served will automatically be credited against the minimum period of revocation imposed once the Notice of Revocation is issued by the Secretary of State.

This information is provided by Attorney Andrew T. Coiner, 629 Washington Street, Paducah, KY 42003, 270-442-9268, acoiner@paducahlawyer.com and Illinois Attorney Donald Ramsell, 128 S. County Farm Road, Wheaton IL 60187, 630-665-8780, donald.ramsell@dialdui.com. For more information on Illinois DUI Law, please refer to Attorney Ramsell's site, http://www.dui-illinois-attorney.com/. For more information on Kentucky DUI law, please refer to Andrew T. Coiner's site, http://www.kentuckyduilawyer.com/.