• Attorney Jennifer Wirth

Formal Hearings: The Differing Roles of Treatment Providers and Attorneys

Although the two professions play different roles in a hearing, they are equally important. An attorney cannot provide DUI treatment for a client and a DUI treatment provider cannot provide legal advice or services. A successful hearing often occurs when a client pairs the services of an experienced DUI drivers license reinstatement attorney with a knowledgeable, licensed treatment provider.



On occasion, a client will tell us that their treatment provider advised them in some way about the formal hearing process. This varies from their treatment provider simply telling a client they don’t need an attorney to more extreme cases where a provider offers to prepare a client through conducting “mock hearings” at their facility.

If a person has one takeaway from this article, let it be that treatment providers and attorneys have very different roles when it comes to Secretary of State hearings. Our office is not licensed nor trained to provide a client with treatment. Likewise, a treatment provider is not licensed nor trained to practice law.

It is critical to understand that each professional provides a different service and plays a markedly different role in the process.

Parties to a Formal Hearing with the Secretary of State

When preparing for their first hearing, many clients are confused about who will be present on the day of the hearing.

Treatment providers are not a party at a formal hearing, and cannot provide legal advice or representation for a hearing.

A formal hearing is a legal proceeding and a petitioner’s representative must be properly licensed to legally act on their behalf. Most commonly, a petitioner retains the services of an attorney that holds an Illinois law license. The administrative code makes limited exceptions for law students and out-of-state attorneys who meet specific criteria. 92 Ill. Adm. Code 1001.30 and 1001.40.

During a formal hearing, the Secretary of State is required to have a duly-appointed hearing officer presiding over the case.

A hearing officer’s role is comparable to a judge. The hearing officer has the authority to conduct the hearing, rule on motions, administer oaths, subpoena witnesses and documents, examine witnesses and rule upon the admissibility of testimony or evidence. 92 Ill. Adm. Code 1001.100(c)

The Secretary of State may also appoint a representative to appear and participate in the hearing on their behalf. As the title suggests, the representative is present to represent the Secretary of State’s interests, rather than a petitioner’s interests. 92 Ill. Adm. Code 1001.100(c)

If a petitioner attends a formal hearing without counsel, the hearing officer, as well as the Secretary of State’s representative, are normally the only other parties to the hearing, aside from the Petitioner. The Secretary of State's representative can call the petitioner as a witness and examine them as if under cross-examination. 92 Ill. Admin. Code 1001.100 (c)(i) and (o). The hearing officer also retains the authority to question a petitioner at a formal hearing.

A critical advantage to having legal counsel is that the petitioner’s attorney is able to question their client first at a formal hearing. The hearing officer and Secretary of State’s representative can choose to follow-up with questions after petitioner’s attorney has completed their examination. 92 Ill. Adm. Code 1001.30(i)

Evidence in a Formal Hearing – Secretary of State and Treatment Provider Documents

A petitioner’s attorney plays a key role in obtaining evidence, presenting documents, calling witnesses and making specific objections during a hearing.

Prior to a hearing, the petitioner’s attorney may file a written “Motion to Inspect the Secretary of State’s documents.” When such a Motion is filed, the attorney has the right to inspect “any relevant document in the possession of or under the control of any other party, prior to the formal hearing.” 92 Ill. Adm. Code 1001.100(g)

The Secretary of State may have documents that they intend to use during a formal hearing, including, but not limited to, a driving abstract, DUI sworn reports, Problem Driving Point System (PDPS) results, as well as all documents and decisions from any prior hearings with the Secretary of State.

Before testifying, a petitioner should review the evidence that may be presented by the Secretary of State at their formal hearing. This allows a petitioner to provide accurate and knowledgeable testimony, while also minimizing the chances of being surprised or unprepared during questioning.

Further, a petitioner’s attorney has the right to subpoena documents and introduce exhibits when presenting a case for their client. This includes, but is not limited to, introducing the evaluation and treatment documents prepared by the petitioner’s treatment provider. 92 Ill. Adm. Code 1001.100(i)

When presenting exhibits, the petitioner’s attorney is reliant on their client having completed an evaluation, as well as treatment, with a knowledgeable provider that understands and adheres to Secretary of State standards. If the treatment documents are incomplete, inconsistent or indicate that treatment was ineffective or unsuccessful, the Secretary of State is likely to deny driving relief.

A petitioner’s attorney may object in certain scenarios. Although the technical rules of evidence do not apply in hearings, a Petitioner’s attorney can object to irrelevant, immaterial or unduly repetitious evidence, as well as to the disclosure of privileged information. If sustained, the evidence may be excluded. 92 Ill. Adm. Code 1001.100(e)

Post-Hearing Considerations

Once a formal hearing has been concluded, the Secretary of State has ninety days to issue a decision. 625 ILCS 5/2-118. If driving relief is granted, an attorney should guide their client on how to complete the requirements to obtain a restricted driving permit or full reinstatement of their driving privileges. If an adverse decision is received, the attorney can review the reasons for denial and recommend the best course of action to improve their chances of success at a future hearing.

Often, an attorney is only as effective in a hearing as the most recent treatment provider has been during counseling. An attorney can present treatment documents and inquire about the concepts that their client learned during treatment in a formal hearing. However, it is essential that their client successfully completed treatment with a knowledgeable provider and can relay the concepts learned in treatment when answering questions posed by their attorney and the Secretary of State.

Although the two professions play different roles in a hearing, they are equally important. An attorney cannot provide treatment for a client and a treatment provider cannot provide legal advice or services. A successful hearing often occurs when a client pairs the services of an experienced DUI drivers license reinstatement attorney with a knowledgeable, licensed treatment provider.

Prior to proceeding with a formal hearing, a revoked driver should consult with legal counsel to determine their best course of action. The information in this article is not legal advice and does not create an attorney/client relationship. Our office is happy to discuss the specific facts of a case during a free consultation.

Jennifer Wirth, Attorney at Law

53 West Jackson, Suite 1531​

Chicago, Illinois 60604

Call

T: 312.461.0400

F: 708.433.0322

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© 2020.  Jennifer Wirth.

Jennifer Wirth is licensed

to practice law in Illinois.

We practice in several counties, including Cook, DuPage, Kane, Kendall, Lake, Kankakee, McHenry and Will County.  Our office also represents revoked drivers across the nation that are seeking legal assistance to clear an Illinois suspension or revocation.