Statutory Summary Suspension: A Basic Overview
This article discusses the Illinois Statutory Summary Suspension Law, as well as options to combat the effect of the suspension, such as rescission hearings, obtaining an MDDP or applying for a Restricted Driving Permit with the Secretary of State.
On January 1, 1986, Illinois adopted the Statutory Summary Suspension law, which provides that a person who drives, or is in physical control of a motor vehicle on public highways, is deemed to have implicitly given consent to chemical testing upon arrest for DUI. 625 ILCS 5/11-501.1.
Pursuant to the law, any person who fails or refuses chemical testing will have their Illinois driving privileges suspended on the 46th day after notice of the summary suspension is given to the person. A person facing the suspension is given ninety days to challenge the suspension upon receiving notice if sufficient grounds exist. 625 ILCS 5/2-118.1
In many cases, a person who is arrested for DUI is served notice of the summary suspension on the date of their DUI arrest. However, the notice of suspension may be delayed in some cases if test results are not immediately available, such as where laboratory testing is administered. If a person is not served notice on their arrest, they may be mailed notice once results are available.
Length of Suspension: First Offender vs. Multiple Offender
The term of a statutory summary suspension varies depending on whether a person is deemed a “First Offender” and whether they refused or submitted to chemical testing.
Under 625 ILCS 5/11-500, a person is generally considered a first offender if they have not had any DUI dispositions, including supervisions and/or convictions, in the last five years.
If a person is deemed a first offender under the summary suspension law, their driving privileges will be suspended for six months if they fail chemical testing. If a first offender refuses testing, they are subject to a twelve-month suspension of their driving privileges. 625 ILCS 5/6-208.1
If a person has had a DUI within the last five years, they are deemed a multiple offender for summary suspension purposes. If a multiple offender submits to chemical testing and fails testing, they are subject to one-year statutory summary suspension. In contrast, a summary suspension of three years will be imposed if a multiple offender refuses testing. During this period, an eligible multiple offender may apply for a Restricted Driving Permit through an Illinois Secretary of State hearing. See 625 ILCS 5/11-500 and 625 ILCS 5/6-208.1.
Differentiating Between a “First Offender” for Summary Suspensions and Criminal DUI Cases in Illinois
It is important to note that a first offender for summary suspension purposes is not necessarily a first offender for their criminal DUI case.
For illustrative purposes, a person may have received supervision fifteen years ago on a DUI and they are currently facing a second DUI charge. For summary suspension purposes, they are a first offender since their first DUI, for which they received supervision, was more than five years ago. However, for criminal DUI purposes, they are a second offender.
It is also important to note that a criminal DUI case only allows for supervision once in life. In the above example, if the person received supervision for a DUI that occurred fifteen years ago, they are not eligible to receive supervision on their current DUI charge. If they plead guilty to a DUI conviction, their driving privileges will be revoked and they must apply for license reinstatement through the Illinois Secretary of State hearing process. 625 ILCS 5/6-205
Unlike a criminal DUI charge, a summary suspension is a civil sanction imposed for failing or refusing testing while driving, or being in actual physical control of a vehicle, on a public highway. Although the criminal DUI charge and the statutory summary suspension case are typically handled together in court, they are two separate cases that are being managed at the same time.
It is often confusing to persons arrested for DUI that they have a civil suspension and a DUI criminal charge pending in tandem. The most simplified explanation is that the goal of a civil summary suspension case is to determine whether or not you receive a drivers license suspension. It is completely separate from your criminal DUI charge and it has no bearing on whether your driving privileges will ultimately be revoked as a result of a conviction on the DUI charge.
In a civil summary suspension case, you are also not facing jail time or any criminal fines. You will have to pay a reinstatement fee to the Secretary of State if your suspension is not rescinded to terminate the suspension in the end, but the sole topic of the civil statutory suspension case is whether or not your drivers license will be suspended for a period of time.
In contrast, a criminal DUI case is penal in nature. Upon a finding of guilty, the court may order fines, imprisonment, DUI treatment and/or community service, as well as other forms of penalties or rehabilitative measures as part of your sentence. If you plead guilty to an Illinois DUI and receive a conviction, your driving privileges will be revoked. A revocation is different from a suspension in that a revocation does not end on a finite date. A revoked driver must attend a Secretary of State hearing to reinstate thier Illinois drivers license.
A person arrested for DUI in Illinois may ultimately have their summary suspension rescinded, but later be found guilty of the DUI criminal charge. The converse is also true. A person may receive a “Not Guilty” or dismissal of the DUI criminal charge, but their drivers license may remain suspended if the statutory summary suspension was not rescinded in the Court after hearing or by agreement.
At the outset of any DUI case, it is important for a person with a pending statutory summary suspension to speak with an experienced DUI defense attorney to determine whether grounds exist to challenge the suspension in court. A summary suspension is time-sensitive as a person must make a written request for a hearing to challenge the imposition of the suspension within ninety days of receiving the notice of statutory summary suspension. The suspension is not stayed while a hearing is pending. A statutory summary suspension automatically takes effect on the 46th day after notice is given, even if a hearing has not taken place yet. 625 ILCS 6/2-118
Challenging a Statutory Summary Suspension
A person facing a statutory summary suspension after an Illinois DUI arrest may challenge their suspension if grounds exist to do so. Upon receiving written notice of the suspension, which is typically, but not always, given to them on the date of their DUI arrest, they may file a written request for a judicial hearing in the circuit court where their DUI case is pending.
The law allows ninety days to challenge a suspension, but a requesting a hearing does not stay or delay the suspension. The suspension will automatically take effect on the 46th day after notice of the suspension is given unless it has been rescinded before the effective date. 625 ILCS 5/2-118.1
Because there is a limited time frame to challenge a suspension of driving privileges after receiving a DUI arrest, it is strongly advised that a person facing a summary suspension consult with an attorney as soon as possible after receiving a DUI. A Petition to Rescind a Summary Suspension can be filed by a pro se defendant, but this is not a good practice.
The written request for a hearing varies between counties as jurisdictions may provide their own forms and have their own practices, such as requesting that a Law Enforcement Sworn Report to be attached to the Petition. It is also imperative that notice is served properly and that all filing requirements are properly observed to ensure the State doesn’t move to strike the Petition.
Further, summary suspension hearings are not only complicated, but limited to certain issues. A person should enlist an experienced DUI defense attorney as counsel so they not only properly request the hearing if grounds exist, but vigorously argue the hearing on your behalf. Pursuant to 625 ILCS 5/2-118.1, a statutory summary suspension hearing is limited to the following issues:
1. Whether the person was placed under arrest for an offense as defined in Section 11-501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket, or issued a Uniform Traffic Ticket out of state as provided in subsection (a) of Section 11-501.1; and
2. Whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both; and
3. Whether the person, after being advised by the officer that the privilege to operate a motor vehicle would be suspended or revoked if the person refused to submit to and complete the test or tests, did refuse to submit to or complete the test or tests to determine the person's blood alcohol or drug concentration; or
4. Whether the person, after being advised by the officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and the test discloses an alcohol concentration of 0.08 or more, a tetrahydrocannabinol concentration as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code, or any amount of a drug, substance, or compound in the person's blood, other bodily substance, or urine resulting from the unlawful use or consumption of a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound as listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act, and the person did submit to and complete the test or tests that determined an alcohol concentration of 0.08 or more
5. If the person's driving privileges were revoked, whether the person was involved in a motor vehicle accident that caused Type A injury or death to another.
When retaining a DUI attorney, the lawyer and client should determine at the outset of the representation, if possible, whether or not the attorney believes there is a legal basis to challenge the suspension. If the DUI lawyer believes there are grounds to proceed with a rescission hearing, the client should clarify whether the hearing is included in the retainer agreement.
In the event that a defendant is advised by counsel that they are unlikely to prevail at a rescission hearing, or if they ultimately do not prevail at a rescission hearing, they may be eligible for a driving permit during the period of suspension.
Monitored Device Driving Permits (MDDP)
If a person facing a summary suspension is a first offender, they may be eligible for a Monitored Device Driving Permit (MDDP). In general, the definition of “First Offender” includes those who have not had a previous DUI disposition, including a DUI supervision or conviction, within the past five years of the current DUI arrest. If a person had a DUI disposition within the last five years, they are not eligible for an MDDP. See 625 ILCS 5/11-500 and 92 ILCS 1001.444.
The Secretary of State shall notify a first offender by mail that they may be issued an MDDP. Eligible persons who receive the MDDP paperwork from the Illinois Secretary of State should complete the form and return it to the Secretary of State if they elect to apply for an MDDP permit.
If an MDDP applicant would like to request an exemption from the breathalyzer while driving employer-owned vehicles, they should do so at the time of application. An employer exemption is only allowed under specific circumstances and limits may be set for on-the-job driving, including limitations on driving the exempted vehicle for more than 12 hours a day, six days a week. See 92 ILCS 1001.444
If an exemption does not apply, the MDDP permit requires the installation of a breathalyzer from an approved Illinois interlock provider and payment of $30/month to the Secretary of State during the term of the MDDP. This non-refundable payment is due in full at the beginning of the permit for the months that a MDDP will be utilized during the term of the statutory summary suspension. This Secretary of State fee does not include any additional costs associated with installation or monitoring of the BAIID device by the approved provider / installer.
For persons who cannot afford the interlock fees, they may make a written application for indigency status with the Secretary of State. It is advisable to contact the BAIID Division of the Secretary of State at 217.524.0660 to learn more about indigency qualifications and procedures. An MDDP applicant may be considered indigent by the Secretary of State if the applicant’s total monthly income is 150 percent or less of the federal poverty guidelines, which can be demonstrated through submitting a copy of their federal or state tax return for the most recent calendar year.
Once a breathalyzer is installed, the MDDP holder can drive anywhere, anytime of day, so long as their vehicle is equipped with a breathalyzer and they sufficiently pass their tests while driving.
An MDDP holder should be careful to avoid any violations on their MDDP, which include, but are not limited to, tampering with the breathalyzer or having a BAC reading of .05 or more upon testing. If an MDDP holder receives a request from the Illinois Secretary of State to explain an event or reading, they should contact their interlock company to determine if there are any known issues that may have caused a testing issue, as well as their legal counsel, prior to responding. When responding, a MDDP holder should be mindful that the State requires a response to their letter within 21 days of mailing.
During the MDDP term, the Secretary of State has several remedies for violations, including, but not limited to, extending the term of the MDDP and/or canceling the MDDP.
If an MDDP holder’s driving privileges are revoked, suspended, cancelled or otherwise invalidated during the term of their MDDP, the MDDP is invalid and should be surrendered to the Secretary of State. An MDDP can be invalidated if an MDDP holder is ultimately convicted and revoked for the DUI arrest that resulted in the issuance of the MDDP. If an MDDP is invalidated due to a DUI revocation, eligible revoked drivers may seek a Restricted Driving Permit through an Illinois Secretary of State hearing.
Restricted Driving Permit Upon Illinois Secretary of State Hearing
Eligible revoked drivers may apply for a Restricted Driving Permit at an Illinois Secretary of State hearing if they do not meet the requirements of the MDDP program and they have no pending case at the time they are filing for a hearing.
For example, if you are a second offender for summary suspension purposes and you received a three-year summary suspension for refusal of testing, you may be eligible to request a hearing with the Secretary of State to obtain a permit once the subject DUI is no longer pending in court.
A DUI case is no longer pending for purposes of applying for a hearing when guilt or innocence has been adjudicated. A person is not prevented from applying for a Restricted Driving Permit if they are still completing their DUI sentence for court, so long as they are in compliance with any potential probation or parole.
Restricted Driving Permits (RDP) are different from MDDPs in that they only allow you to drive for a specific purpose, within the days, times and mileage radius listed on the permit. If successful at a Secretary of State hearing, the Secretary of State may issue a permit to drive for work, school, medical needs, support group meetings, community service and/or certain family needs, such as transporting a child to daycare or school. The Secretary of State can issue permits for multiples purposes.
Prior to a Secretary of State hearing to request a permit, a petitioner will need to have completed an evaluation within six months of the hearing date and also provide proof of successful completion of alcohol/drug treatment, in accordance with Illinois Secretary of State standards. Depending on the level of treatment and eligibility, petitioners may have to submit additional documents, including, but not limited to, abstinence/character letters, support program letters and/or hardship letters.
The level of preparation for a Secretary of State hearing is extensive. Prior to filing for a hearing, a petitioner should consult with an experienced attorney to discuss how they can assist with obtaining documents and preparing a petitioner to testify at their hearing. For a free consultation on Illinois Secretary of State hearings, please do not hesitate to contact our office at 312.461.0400.
The information contained in this article is not legal advice and does not create an Attorney/Client relationship. Prior to making any legal decisions, it is strongly recommended that you consult with an attorney to discuss the specific facts of your case.