Representing DUI clients before the Secretary of State:

here's a plain-language primer on the SOS process,

including some of the unwritten rules about how to help
your client not only get the best possible outcome at a
hearing but also confront his or her alcohol problem.
Around 50,000 people will probably be arrested in Illinois thisyear for driving under the influence of
alcohol or other intoxicatingcompounds, if statistics kept by the Illinois Secretary of State forrecent
years continue their trend. Every one of those motorists willface not only criminal charges in the
courtroom but also the statutorysummary suspension of their licenses to drive. If they're foundguilty
of the DUI charges, their licenses will be revoked.
Legal representation of those defendants doesn't begin and end in the courtroom. In Illinois, the
Secretary of State, not the court system, is responsible for issuing, suspending, or revoking driver's
licenses and, under the circumstances set forth in the Illinois Vehicle Code, is empowered to grant
relief from revocations. 625 ILCS 5/2-118, 6-211.
The Secretary has adopted rules and put in place a complex system for accomplishing those duties,
complete with a hearing process clients must negotiate as they seek to get their driving privileges
back. Lawyers with clients facing DUI charges, then, must have an understanding not only of the
statute but also of the Secretary's administrative procedures, even if, as many do, they refer their
clients to other lawyers for counsel and representation on the civil aspects of their traffic troubles.
Not surprisingly--indeed, it would be surprising if it were otherwise--much of what lawyers need to
know to successfully represent clients before the Secretary doesn't appear in the statutes or
the code. The folkways and nuance of the process are part of the hard-won knowledge of veteran
practitioners.
This article taps the knowledge of some of those veterans. Butfirst, it briefly explains the complex
DUI process to give you anunderstanding of how reinstatement and other, more limited restorationof
driving privileges works. As for challenging DUI arrests, advisingclients who have been arrested,
representing them in court--DUI practiceoutside the Secretary of State's process--that we leave for
anotherday.
A thumbnail sketch of summary suspension
As nearly everyone knows, it's a crime to drive with a blood alcohol concentration (BAC) of .08 or
greater. 625 ILCS 5/11-501. Police ask drivers arrested for DUI to submit to chemical testing of
their blood, breath, or urine. Motorists who refuse have their driver's licenses suspended.
Motorists who do take the test but have a BAC of .08 or more will also have their driver's licenses
suspended, but for a shorter time than if they had refused the test. These so-called statutory
summary suspensions are automatic and take effect on the 46th day after the arrest. 625 ILCS
5/11-501.1(g).
Even if the DUI charge that resulted in the suspension is dismissed or the driver is found not guilty,
the statutory summary suspension continues unaffected unless the driver successfully petitions to

rescind it. 625 ILCS 5/2-118.1(b).

"First offenders"--generally, those who haven't had a final disposition (i.e., conviction or supervision)
for DUI within the last five years--get a statutory summary suspension of 12 months after refusing
the testing or six months if the test registers a BAC of .08 or more.
With a few exceptions, first offenders who get statutory summary suspensions are eligible to use a
monitoring device driving permit (MDDP) from the Secretary of State. 625 ILCS 5/6-206.1(a).
Motorists with MDDPs are generally free to drive anywhere, anytime, as long as they drive a
vehicle equipped with a breath alcohol ignition interlock device (BAUD). 625 ILCS 5/6-206.1(a-1).
Drivers who aren't "first offenders" --those with prior DUI arrests or convictions that weren't
overturned--get longer statutory summary suspensions and aren't eligible for MDDPs. Those with
one prior DUI arrest within five years get a one-year suspension if they fail the test and three years
if they refuse.
Unless they're first offenders with MDDPs, drivers on statutory summary suspension may not drive
anywhere for any reason. Period.
A thumbnail sketch of license revocation and RDPs
Revocation. The Secretary of State is required to revoke the license of anyone convicted of DUI. 625
ILCS 5/6-205. Drivers can get a license reinstated only after a SOS hearing at which they show
that allowing them to drive will not endanger public safety and welfare. 92 Ill Admin Code section
1001.430(f). (See the Secretary's rules for details about how the petitioner can make that showing.
92 Ill Admin Code section 1001.430.)
Keep in mind that a revocation is separate from a statutory summary suspension, which runs
concurrently with a revocation. A revocation will terminate an MDDP, except those for first
offenders who receive supervision, who can continue to drive with the MDDP.
Unlike suspensions, revocations carry no termination dates. They do, however, carry minimum
terms. Drivers who have been convicted once of DUI may not apply for reinstatement until one year
after the effective date of their revocations. 625 ILCS 5/6-208(b)1. Those convicted a second time
within 20 years of their first conviction may not apply for reinstatement until five years later. 625
ILCS 5/6-208(b)2. The third time is no charm; it's 10 years before those motorists may apply. 625
ILCS 5/6-208(b)3.
And drivers convicted a fourth time? They lose their licenses forever if at least one of the
convictions is for an arrest on or after January 1, 1999. 625 ILCS 5/6-208 (b)4; 92 Ill Admin Code
section 1001.460(c). Also, any driver with one or more prior revocations for DUI is not eligible for
any sort of driving relief for the first year of a new revocation for DUI. Likewise, anyone under 21
who is convicted of DUI is ineligible to drive during the first year of revocation.
RDPs. Otherwise, during the period of revocation drivers may seek a restricted driving permit
(RDP), which isn't available for summary suspension. Like reinstatement, RDPs are granted as the
result of a successful hearing before the Secretary of State.
RDPs allow motorists to drive for any of several narrow purposes--between home and workplace, for
example, or for job-related duties. (625 ILCS 5/6-205(c) (1), or to court-ordered community
service (92 Ill Admin Code sec 1001.420(b) (3)). The RDP recipient may drive only for the

designated purpose.
To get an RDP a driver must demonstrate, by clear and convincing evidence, that no alternative
means of transportation is available and that they will not endanger the public safety or welfare.
Most people who petition the secretary for driving relief have served their minimum revocation
period and thus are eligible for full reinstatement of their driving privileges. They typically apply for
full reinstatement but request an RDP in the alternative.
If, however, the driver is not yet eligible for full reinstatement, he or she is eligible only for an RDP
and must also convince the Secretary that undue hardship, not merely inconvenience, will result
if the RDP is denied. Id; 92 Ill Admin Code section 1001.420(d).
As a condition of an RDP, the statute requires a motorist with two or more suspensions or
revocations resulting from separate occurrences within a 10-year period to have a BAUD installed.
625 ILCS 5/6-205(c)(2). If they have two or more Illinois DUI convictions in their lifetime they must
install a BAUD in all of their cars and keep it in place for at least a year. This applies whether
they've gotten an RDP or had their license reinstated. See the Secretary's rules for specifics about
the RDP hearing process. 92 Ill Admin Code section 1001.420.
Motorists with revoked licenses who are still subject to statutory summary suspensions must wait
until those suspensions end before applying for and RDP; those whose suspension periods are up
may apply immediately unless they are locked out for a year or a lifetime as described above.
The Secretary of State's hearing process
Hearings on these applications as well as on requests for reinstatement may be formal or informal,
though the latter are available only in cases that do not involve death or, generally, multiple
DUI convictions. 92 Ill Admin Code section 1001.300 et seq. The Vehicle Code provides for formal
hearings, and the Secretary of State's rules, at 92 Ill Admin Code section 1001.10 et seq, govern
procedure at those hearings.
Formal hearings are held at Chicago, Joliet, Mount Vernon, and Springfield, and must be scheduled
through a written request at a $50 cost. The Secretary maintains forms for scheduling and other
aspects of the hearing process at
http://www.cyberdriveillinois.com/ publications/adminhearingspub.html.
A formal hearing will typically be scheduled within two weeks of the Secretary's receipt of the
request and held within 90 days of the receipt. 625 ILCS 5/2-118(a). Participants include the
hearing officer, who is appointed by the Secretary of State, the attorney for the Secretary, the
petitioner/motorist, and, if present, the petitioner's attorney. Any relevant evidence may be
admitted if it's the sort that "reasonably prudent" people rely on. 92 Ill Admin Code section
1001.100(d)(1).
The proceedings are recorded, and a transcript can be generated. Orders are issued within 90 days
of the hearing, as required by 625 ILCS 5/2-118(d), and include findings of fact, conclusions of
law, recommendations, and an order. 92 Ill Admin Code section 1001.110.
An order after a formal hearing is appealable to the circuit court of the county in which the hearing
was held through the Administrative Review Law. 625 ILCS 5/2-118(e). Alternatively, disappointed
petitioners may try another formal hearing no sooner than 90 days after the first.

Informal hearings are 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, a list of which is available at http://www.
cyberdriveillinois.com/departments/ admin_hearings/informal_hearings.html. There is no appeal
from an informal hearing.
"There's a lot of misinformation out there"
So much for the dry letter of the ILCS and the administrative code. What really happens at a
reinstatement or RDP hearing? What are your odds for success, and how can you best represent
your client? What's the inside story?
Springfield lawyer Ted Harvatin, who spent 15 years as a Secretary of State hearing officer and now
represents clients before the Secretary in hearings for restricted driving permits and license
reinstatement, recommends that lawyers wishing to represent their clients in informal hearings
telephone the most convenient Secretary of State office from the online list a day early to find out
whether hearing officers are expected to be available.
Informal hearings are not recorded and are not appealable, nor does any attorney for the Secretary
of State appear. "The hearing officer will ask a scripted set of questions. The attorney's job in the
hearing room is to sit back and let the client answer clearing up any inconsistencies in the end,"
says Harvatin.
A decision takes the form of a letter sent to the petitioner or attorney, briefly explaining the decision
and reasons for it. If the decision is unfavorable, the petitioner may either have another
informal hearing, which must be at least 30 days later, or may request a formal hearing.
Requesting a hearing is the easy part. Proving to the Secretary's satisfaction that your clients
should receive RDPs or have their licenses reinstated is another matter: it's time-consuming,
laborious, and difficult, according to lawyers who handle those cases.
"A permit, let alone driver's license reinstatement after a DUI revocation, is anything but
automatic," says Harvatin. "The final decision in every case rests solely within the discretion of
someone who is not even in the room during the hearing: the 'reviewing officer.'"
And Harvatin holds out little hope for those who might expect to be able to run to circuit court and
get a Secretary of State order that's not to their liking overturned: "Most judges rubberstamp the
Secretary of State's decision. Judicial review is more theoretical than real."
On the other hand, Harvatin agrees with Skokie lawyer John Quinn, another veteran practitioner
before the Secretary of State, that "[t]here's a lot of misinformation out there," on the part of
clients and attorneys alike.
Both say that many clients come to them believing they will automatically lose at their first hearing
before the Secretary. Both disagree. In Quinn's words, "Most people are denied because they go
alone, without counsel, or with an attorney who's unfamiliar with the process and unprepared."
Quinn says another common misconception is that the Secretary wants only to deny requests for
RDPs and reinstatements. "The Secretary of State hearing officers know their job is to approve
people. But they need to be the right people to approve."

Though reading and rereading the Vehicle Code and the Secretary's rules are indispensable,
Harvatin explains some of those rules, as well as some unwritten rules, in plainer language.
The risk classification levels
Harvatin first notes that the Secretary will not convene a hearing for either reinstatement or an
RDP until the motorist obtains a drug and alcohol evaluation from a licensed provider. See 92 Ill
Admin Code sections 1001.420(m) and 1001.430(d). That evaluator establishes a risk classification
for the motorist that will determine what treatment he or she must complete before the Secretary
will consider awarding driving relief. At the hearing, Harvatin says, the motorist must document
that he or she is following through on all of the evaluator's recommendations.
There are three risk classification levels, Harvatin continues, referencing 77 Ill Admin Code section
2060.503(g). Level 1, also known as minimal risk, will apply to an offender who has had only one
arrest for DUI and has had a BAC reading of less than .15. Petitioners properly classified as Level 1
will have only to complete a 10-hour Driver Risk Education (DRE) course before their hearing.
Level 2 is divided into moderate and significant risk. A moderate risk offender will have had only
one arrest for DUI but either refused to submit to blood or breath testing or did submit and was
found to have a BAC of between .15 and .19. Petitioners classified as moderate risk will have to
complete at least 12 hours of early intervention alcohol counseling in addition to a DRE course
before their hearing.
The significant risk classification applies to offenders who register .20 or higher upon submitting to
chemical testing after their arrests, regardless of how many DUI arrests they have had, or
offenders who have prior DUI dispositions or any abuse or dependency symptoms. For this purpose,
DUI dispositions include statutory summary suspensions that were not rescinded, even if the charge
was dismissed or the driver acquitted; convictions; court supervision; reckless homicide in cases
in which alcohol or drugs were a factor; and DUI arrests that were reduced to reckless driving
charges, whether those charges led to supervision or entry of a conviction. Petitioners classified as
significant risk must complete the DRE course, at least 20 hours of alcohol treatment, and usually
an additional 14 hours of aftercare before having a hearing.
The final risk classification level, Level 3, is high risk. Harvatin notes that evaluators further divide
this classification into two: dependent, essentially equivalent to alcoholic or drug-addicted, and
non-dependent, which will include anyone with fewer than three symptoms of dependency as
determined by the evaluator and the treatment agency but three or more DUI dispositions within
the 10-year period, which includes their last arrest.
The last part of the criteria for high risk non-dependent can lead to a strange result. A driver who
exhibits less than three symptoms of dependency and has DUI arrests in 1992, 1994, and 1999, will
be classified high risk non-dependent. However, drivers with arrests in 1992, 1994, 1999 and 2005
will be classified significant risk because they only have two arrests in the 10-year period leading up
to their most recent arrest. So, a driver can potentially reduce his or her classification by getting
arrested for DUI one more time (not that it's advisable).
Dependent high-risk petitioners need not complete a DRE course but must complete either inpatient
alcohol treatment or 75 hours of intensive outpatient counseling. They must also prove abstinence
from alcohol and illicit drugs for not less than a year immediately before the hearing date to be
considered for full reinstatement of driving privileges, although the hearing officer has the
discretion to waive the one-year requirement and consider granting the petitioner an RDP after six

months of abstinence.
Nondependent high-risk petitioners need not have a support program in place but must show
abstinence or nonproblematic use of alcohol for at least 12 months before the hearing if they wish
to be considered for full reinstatement. Again, the hearing officer may choose to consider the
petitioner for an RDP after six months of abstinence or nonproblematic use.
"A good evaluator will confront your client"
Many, if not most, clients coming to his office for their first visit will already have completed an
alcohol evaluation, Harvatin says. But, he continues, that doesn't mean the evaluation
is satisfactory. In fact, he says he often asks evaluators to redo their evaluations based on factors
he doesn't think they have properly identified or addressed. For example, he says, if chemical
testing revealed that the client's BAC level when arrested was, say, .25--more than triple the legal
limit --the evaluator should have addressed alcohol tolerance.
Both Harvatin and Quinn emphasize using an evaluator who understands what the Secretary wants
and needs for making decisions on RDPs and reinstatements. Additionally, Harvatin says, "A
good evaluator will confront your client" about the problems that led to his or her DUI arrest and
loss of driving privileges.
While some of those clients, Harvatin continues, are in clinical denial as part of their alcoholism,
others mistakenly believe that if they tell the authorities the truth, they will never be able to
drive again. And, says Quinn, "It's hard for people to be honest about the past, because it's
embarrassing."
But, they agree, part of the key to petitioners' putting their best feet forward before the Secretary's
hearing officers is, counterintuitively, putting their worst feet forward by volunteering
and acknowledging a certain amount of unattractive information. If, for example, the hearing
officer inquires whether a petitioner with two DUI arrests has ever driven while intoxicated and not
been arrested, both Quinn and Harvatin say the answer had better be "yes," because a "no" will not
be credible.
"Honesty and sincerity will get you approved," Quinn says. "When you try to deceive them, or
answer questions the way you think they want you to answer them, that's when you get
into trouble." On the other hand, warns Harvatin, "you can't let your client overdo it and suggest
that the problem is worse than it is."
Formal or informal hearing?
Harvatin describes how he assesses a client's options and determines the best strategy to use upon
the client's coming in to his office for an initial meeting.
It's essential, he says, to obtain certain documents from the client. They include the court purposes
driving abstract, a summary of the motorist's driving record which is available from the
Secretary for a $12 fee; the motorist's statutory summary suspension report or reports, prepared
by the arresting officer as a snapshot of the officer's perception of the circumstances leading up to
the DUI arrest; and any other paperwork from the Secretary, including copies of documents from
any prior licensing hearing. The Secretary generally requires three to four weeks to supply prior
hearing documentation, he says.

From the abstract alone, Harvatin continues, he'll usually be able to determine whether the client is
statutorily eligible for a hearing and, if so, whether he or she is also eligible for an informal hearing
under the Secretary's rules. Whether to proceed to an informal hearing or a formal one for those
eligible for both is a judgment call, he says. If he feels his client has a very strong case for
restoration of driving privileges, he'll request an informal hearing.
An example of a strong case, he says, might be a client with only one DUI and unusual, one-time
circumstances leading up to the arrest. Because informal hearing officers rely even more on paper
documentation than formal hearing officers, he says, "If I think a client will come across better in
person than on paper, I'll request a formal hearing."
Help clients understand they have a problem
Harvatin and Quinn emphasize that success in getting driving privileges restored overwhelmingly
depends on getting their clients to understand that they have a problem and why they have it.
"Clients with a bad attitude probably won't do well at Secretary of State hearings," says Harvatin.
"I go through the client's paperwork with the attitude of a hearing officer and ask myself
whether I'd approve a driver's license for this person based on the paperwork," he says.
He and Quinn confront their clients with the questions they know hearing officers will ask their
clients, such as whether they've ever had a hangover, whether they've ever driven with
their driver's licenses revoked, and how much they drank on the nights they were arrested.
When he hears stories that aren't consistent with the paperwork, Quinn says, "I ask them to think
about how improbable that is. You have to be diplomatic, but also forceful and direct when you're
talking to them."
They also prepare their clients for explaining how their habits and lives have changed so as to
justify a reinstatement of driving privileges. "What did you learn about what caused your
alcohol problem? What did you learn in your substance abuse classes? What's different about your
life now? You have to extract this information from your clients, who will often be nervous and
confused, so that they can present it to the hearing officer," says Harvatin.
Both lawyers say they'll refund fees without hesitation to clients who maintain belligerent attitudes.
And where clients seem insincere in professing to have reformed, Quinn believes lawyers are doing
them as well as the public a service in cutting them loose. "If I know I can get someone approved
but they're just going out to drink and drive again, I'm setting them up for failure. They'll get
arrested again and go to jail." And he suggests, maybe someone will die.
Seek help from veteran counsel
The two also speak of the personal nature and importance of their work in this area of law. "A
driver's license is the difference between losing a home, a job, and a marriage to a lot of people,"
says Quinn.
"The people who suffer the most from the DUI crackdown work hard to raise the funds to hire legal
counsel," Harvatin says. "They are entitled to competent representation." Both urge lawyers
wishing to develop expertise in the area not to hesitate to ask for help, not only from competent and
knowledgeable counsel but also from personnel at the Secretary of State.
Find out more

* The Secretary of State maintains a variety of useful forms on his Web site at
http://www.cyberdriveillinois.com/publications/adminhearingspub.html.
* A form detailing the process for applying for reinstatement or a restricted driving permit is
available at http://www.sos.state.il.us/publications/pdf_ publications/restoring_privilege.pdf.
* The Secretary's 2009 Fact Book, a helpful pamphlet providing statistics on DUI and describing the
process of suspension, revocation, reinstatement, and obtaining a restricted driving permit is
available at http://www.cyberdriveillinois. com/publications/pdf_publications/dsd_a118.pdf.
* The administrative rules applicable to driver's license hearings are found at 92 Ill Admin Code
section 1001.10 et seq, accessible on line by visiting
http://www. ilga.gov/commission/jcar/admincode/titles.html:
Learn more, earn CLE credits
To learn more about the increasingly complex issues that arise in traffic and DUI courts and the
complicated sentencing options mandated by the Illinois General Assembly--and earn CLE credit in
the bargain--view "DUI, Traffic, and Secretary of State Related Issues--2009." The program,
presented by ISBA's Traffic Laws and Courts Section, is available 24/7 on the Web. To purchase it
click on the FastCLE banner at isba.org, select "Go to FastCLE," then under "Select a category to
see the available seminars" click on "Traffic" and choose the program from the drop-down list.
Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.
Thanks to Tom Speedie of Mt. Vernon, formerly an SOS hearing officer and now in private practice,
for his help with this article.