QUESTIONS AND ANSWERS
Our office provides answers to some of the most commonly asked questions relating to Illinois DUI law and driver's license reinstatement.
Illinois DUI Questions
Driver's License Hearing Questions
Myths about License Reinstatement Hearings
What is the difference between a statutory summary suspension and a license revocation?
A statutory summary suspension differs from a driver’s license revocation in terms of its’ nature and timing. A suspension has a definite end point, although the end date may be extended for various reasons, such as having a rejected BAIID explanation while driving on a monitoring permit during the suspension term. However, if no extensions occur during the suspension period, a person’s driving privileges will be restored on the termination date of the suspension if they have paid their reinstatement fee with the Secretary of State. There is no hearing required to end a suspension – it has a natural end.
In contrast, a driver’s license revocation does not have any mandatory end date and will stay in effect until the revoked driver is granted full reinstatement or clearance after a successful Secretary of State hearing. A revoked driver is given a “reinstatement eligibility date,” instead of an end date as in cases of suspension. The “reinstatement eligibility date” is simply the first date that the revoked driver is eligible to apply for their full driving privileges, unless subject to a five-year BAIID permit.
A summary suspension is typically given at or around the time of a DUI arrest in Illinois, whereas a revocation occurs after a person is convicted of the DUI charge. The summary suspension is an administrative penalty given by Illinois Secretary of State relating to a person’s decision on whether to take the test on the date of their DUI arrest. If a person fails chemical testing or refuses to submit to chemical testing, their license will be subject to a statutory summary suspension, absent a successful challenge in court.
If a person wishes to contest the suspension, they have ninety days to file a challenge in court. However, the summary suspension will automatically take effect on the 46th day of receiving notice, despite any pending challenge to the suspension. If a person successfully challenges their summary suspension in court, they still can be found guilty of the ultimate criminal DUI charge and have their license revoked. Likewise, a person may lose the civil suspension hearing but beat the DUI criminal case, preventing the revocation of their Illinois driving privileges.
A DUI revocation is different from a summary suspension in that it is triggered by a conviction on the DUI charge. Unlike the summary suspension at the outset of a DUI case, a revocation happens at the end of the DUI case in court. Once a person has been found guilty of DUI and convicted of the charge, the Secretary of State will revoke their driving privileges upon receiving notice of the disposition. If a person receives court supervision on a DUI charge, the Illinois Secretary of State will not revoke a person’s driving privileges. As such, supervision is often considered a good plea option for eligible first-time DUI offenders if a case cannot be won at trial.
Am I eligible for a MDDP permit while my summary suspension is in effect?
When a person is facing a summary suspension, they may be eligible for a Monitoring Device Driving Permit (MDDP). To be eligible for an MDDP, a person must be a first offender and have an interlock device installed while operating their vehicle. An MDDP allows an eligible first offender to drive during the summary suspension period if those conditions are met for any purpose - 24 hours day, seven days a week. 625 ILCS 5/6-206.1.
There are certain instances where the Secretary will not issue a MDDP despite being a first offender. This includes cases where the person’s license is otherwise invalid, the underlying DUI involved death or great bodily harm, the person has a prior conviction for reckless homicide or aggravated DUI involving a fatality, or the person is under the age of eighteen at the time of their DUI arrest.
A person is considered a “first offender” for MDDP purposes if it has been at least five years since any prior DUI arrest that resulted in supervision or a conviction. 625 ILCS 11-500. A person who is not a first offender does not qualify for an MDDP. If a person is not eligible for an MDDP, a person may still be able to petition the Illinois Secretary of State for a permit at a hearing. If grounds exist, a person may also try to challenge the suspension in court if they are within the ninety-day window to file a challenge.
Upon receiving notice of the summary suspension, the Illinois Secretary of State should send an eligible first offender written notice that they are able to obtain an MDDP upon meeting the requirements for issuance. If a person does not have their current address on file with the Secretary of State, they should contact the Springfield Secretary of State office at 217-782-7065 to ensure the MDDP packet is delivered to the correct residence.
How do I avoid a false positive reading on a breathalyzer test?
Many of the permits issued by the Secretary of State mandate an individual to have the Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicle as a condition of driving. The BAIID requires a driver to submit to breath alcohol testing at the time of starting their vehicle, while also prompting them to perform rolling retests while operating their vehicle.
The BAIID is designed to monitor a driver’s BAC level while driving as a safeguard against driving under the influence. The machine is equipped with a camera that takes a photo of the driver at the time of testing. The camera helps prevent positive readings from being attributed to the permittee if another person is using their vehicle at the time of the reading. The camera function is not a video camera – it does not tape you while driving, it only takes a photo of you when you are testing.
When a client has a BAIID in their vehicle, our office provides two general guidelines to help minimize the occurrence of false positives on an interlock device:
1. Wait twenty minutes after putting anything in your mouth before submitting to a BAIID test; and
2. Use soap to clean yourself or your car since many cleaning products contain alcohol.
We recognize that there are situations where a person does not have the time to wait twenty minutes to start their vehicle and may accidentally contaminate the machine with an outside substance. However, as a very broad rule of thumb, these two practices will help lessen the probability of false positives on a BAIID device.
We also encourage people to avoid certain substances before using a breathalyzer that may produce a false positive reading. There are different technologies used for testing devices. Therefore, we cannot create an exhaustive list since some devices are not triggered by contaminants that may affect other types of devices. However, some items that may affect the BAIID include the following:
Mouthwash – Many types of alcohol-based mouthwash contain a high percentage of alcohol – as high as 26% in some brands. So even though you don’t ingest mouthwash, there could be enough alcohol on your breath to register a false positive in a short time-period after use.
Breath Spray – As with mouthwash, many breath freshener sprays contain high amounts of alcohol, which may lead to a positive reading on the device.
Fruit drinks and other beverages – There can be some fermentation in fruit drinks, kombucha, and energy drinks that may cause a minimal amount of alcohol to register on your interlock device.
Cough Syrup – Some cold and cough syrups contain high amounts of alcohol, which may cause a positive reading on the interlock device. We encourage interlock users to opt for an alcohol-free cough syrup whenever medically appropriate.
Hand Sanitizer – Most hand sanitizers contain a large percentage of alcohol in their ingredients. If possible, we encourage interlock users to sanitize with soap and water to avoid breathalyzer contamination during use.
Perfumes and Colognes – Some perfumes and colognes have alcohol as an ingredient. If a breath sample is contaminated in the passenger cabin with the spray, it may result in a false positive reading.
Chemicals and Cleaners – Some auto and trade products contain alcohol, such as windshield washer fluid and paint thinner. Although poisonous to ingest, the fumes from the product may contaminate the breathalyzer for a brief period if in close contact with the device.
If a BAIID user has a failed interlock test, the Secretary of State may write a letter to request an explanation for the positive reading. The State allows twenty-one days to provide a written explanation relating to the cause of the reading. If the test was contaminated, the BAIID user should provide supporting documentation to demonstrate that the reading was not related to legitimate alcohol use. If surrounding tests were passed, this factor should be highlighted in the response. In cases where the State accepts the response, it is not deemed to be a violation of the BAIID program.
The best solution to avoid testing failures to avoid alcohol use and products containing alcohol when using the BAIID device. The Secretary of State is not obligated to accept any explanation and a person’s credibility may become diminished if they accrue multiple BAIID readings due to alleged contamination. The best rule of thumb is to avoid drinking alcohol altogether, while waiting twenty minutes before the test after ingesting any food item or handling alcohol-based chemical products.
Why did I get arrested for DUI if I was just sleeping in my vehicle?
Under the Illinois DUI law, it is unlawful to drive or be in “actual physical control” of any vehicle” while under the influence of drugs or alcohol. 625 ILCS 11-501. A person does not need to drive or intend to drive to be in “actual physical control” of a vehicle. Naperville v. Watson, 175 Ill. 2d 399, 402 (1997).
The term, “actual physical control” has been litigated extensively to determine what conduct falls within its’ parameters. Over time, the courts have developed a list of factors to consider when determining whether a person is in “actual physical control” of a vehicle while intoxicated, including whether the defendant (1) possessed the ignition key; (2) had the physical capability to operate the vehicle; (3) was sitting in the driver's seat; and (4) was alone with the doors locked. People v. Slinkard, 362 Ill. App. 3d 855, 859 (2005).
The courts continue to decide whether a person was in “actual physical control” of a vehicle while intoxicated on a case-by-case basis. Although the above factors serve as guidance, the State does not need to prove all these factors, nor is the court limited to solely considering these factors if additional evidence exists that are relevant to determining “actual physical control.”
Many clients question the rationale for this provision in the law. We do recognize that the “actual physical control” portion of the DUI law disincentives persons from staying in their vehicle, with no intention of driving, when they know they are too intoxicated to safely operate a motor vehicle. We don’t necessarily agree with the real-world effect.
The Illinois supreme court in Watson explained the legislative intent behind penalizing intoxicated persons for being in “actual physical control” of a vehicle under the DUI law. The court noted that the legislative intent was to encourage those who plan to drink to arrange lodging or safe transportation home in advance. They expressed concern about persons making decisions about safely getting home after their judgment is impaired, rather than before going out drinking. Watson, 175 Ill. 2d at 405.
If I am convicted of a DUI, how long will my license be revoked?
Generally, reinstatement eligibility is determined by the number of convictions a person has had in life for DUI, under 625 ILCS 5/6-208. There are many exceptions and caveats to the broad eligibility categories embodied in this provision and it is best to consult a lawyer to determine individual eligibility for driving privileges.
For persons convicted of their first DUI, the revocation period is typically one year before they are eligible to request driver’s license reinstatement at a hearing. However, the Secretary of State may issue a credit for time spent without driving privileges, such as the period of statutory summary suspension. Further, if a person is not eligible for full reinstatement, they may qualify for a hardship permit if they meet their burden at a hearing.
In the case of a second or third DUI conviction, Illinois residents are required to drive on a continuous five-year BAIID permit before requesting full reinstatement of their driver’s license, regardless of reinstatement eligibility. If a person is an out-of-state resident seeking clearance, they must wait for the statutory term of eligibility before applying to lift the Illinois hold on their license. Absent an exception or prohibition in the law, a second DUI conviction has a statutory revocation term of five years, while a third DUI conviction carries a term of ten years.
When a person has four or more DUI convictions in life, the law varies depending if they live in Illinois or reside in another state. Whether in-state or out-of-state, all applicants in this category must show at least three years of uninterrupted abstinence from alcohol and drugs prior to applying for driving privileges. However, the nature of the driving relief available is different based on residency.
For Illinois residents with four or more DUI convictions, the applicant must wait five years from their most recent revocation or term of imprisonment, whichever is later, before applying for driving privileges (See 625 ILCS 6/6-205). Persons in this category are only eligible for a lifetime BAIID hardship permit if they are granted driving relief. If two or more of the 4+ convictions are drug-based DUIs, they are barred for life from seeking a restricted driving permit for hardship purposes. However, an Illinois resident in this category may apply as an out-of-state resident if they move later in life and otherwise meet the criteria for clearance as a non-resident.
An out-of-state resident with four or more DUI convictions must wait ten years from the date of the most recent revocation (or out-of-state withdrawal) before seeking full clearance through a hearing. If successful at a hearing, the out-of-state resident’s Illinois licensing hold will be lifted and they can apply in another state for driving privileges. However, if they return to Illinois and attempt to obtain a license, the out-of-state applicant will be subject to the lifetime BAIID hardship permit requirements again.
These time frames serve as a summary of statutory benchmarks only. It is impossible to accurately assess eligibility, including whether a person is barred from applying for driving relief, without knowing the facts of their case. This general overview of the statutory categories should not be relied upon for determining personal eligibility. As with all legal matters, we encourage individuals to seek the advice of an attorney with questions relating to eligibility for license reinstatement.
What is the difference between a formal and an informal hearing?
The Illinois Secretary of State has two types of hearings to request driving privileges after a license revocation - formal and informal hearings. The reason for revocation dictates which type of hearing is required of an applicant for driving privileges.
A formal hearing is required for a person whose driving privileges have been suspended or revoked due to having multiple DUI suspensions/revocations, a DUI involving a Type A injury accident, a Reckless Homicide revocation, or any other offense where a fatality occurred while operating a motor vehicle.
Conversely, an informal hearing is required for a person whose driving privileges have been suspended or revoked for a single DUI (excluding reckless homicides and Type A injury accidents), as well as revocations for less serious moving violations and offenses. Informal hearing officers may also accept requests to change the information on existing permits and renew permits if there were no BAIID violations during the permit period.
The conduct of a formal hearing is more like a trial setting than an informal hearing. Formal hearings are scheduled in advance by the State and the applicant is sent written notice of the date. During the proceedings, the hearing officer acts as a decisionmaker, while the Secretary of State’s representative is the attorney for the Secretary, retained to protect their interests. The applicant is entitled to bring a defense attorney to advocate on their behalf.
At the beginning of a formal hearing, the attorneys for both sides submit evidence to support their case. The proceedings are recorded. The applicant may be questioned by both attorneys, as well as by the Hearing Officer. At the conclusion of the formal hearing, the Hearing Officer writes a decision, subject to review, that should be sent to the applicant within ninety (90) days after the formal hearing has taken place.
In contrast, an informal hearing is held in an office setting, where the hearing officer sits behind a desk and asks the applicant specific questions. The applicant’s answers are written down by the informal hearing officer and a non-binding recommendation is made to the Secretary by the hearing officer. The proceedings are not recorded, and the State does not have an attorney present. However, applicants are entitled to prepare with their own attorney and bring representation to an informal hearing. After the hearing, the applicant is mailed a written decision after review has been completed.
An applicant for a formal hearing must pay a $50.00 filing fee at the time of filing for a hearing. If the applicant is represented by an attorney for a formal hearing, their attorney may file for the hearing on their behalf. The applicant and their attorney of record will be notified of the hearing date by either regular mail or email.
A formal hearing request must be made in writing through the U.S. mail and should be sent to the location where the applicant would like to sit for the hearing. The Illinois Secretary of State holds formal hearings at four locations in the state: Chicago, Joliet, Springfield and Mount Vernon.
The Illinois Secretary of State holds informal hearings on a walk-in basis at many DMV locations throughout the state. To find an informal hearing officer, the Secretary maintains a list of hearing officer locations. An applicant should call in advance, whenever possible, to ensure an informal hearing officer is present before showing up for an informal hearing. An informal hearing officer may be temporarily assigned to a different location, maintain specific hours or have taken the day off work.
For both formal and informal hearings, it is strongly recommended that applicants hire an experienced attorney for the Secretary of State hearing process. The Secretary of State maintains copies of all documents submitted at a hearing. They also keep a record of the statements made at prior hearings and their written decisions. It is always advisable to prepare with legal counsel in advance to reduce the likelihood of errors or misunderstandings that may lead to a denial at a hearing.
How do I obtain my records from my prior Secretary of State hearings?
Prior to attending a Secretary of State hearing, an applicant for driving privileges should order their administrative hearing records if they have had any prior hearings in the past. If an applicant has enlisted the services of an attorney, this is often done during the consultation phase or at the outset of representation to evaluate the case.
If a person has never attended a Secretary of State hearing, it is unlikely there are any records in the file. However, it is still a good practice to verify that no records have been sent to the Secretary by making this request. The Secretary of State may seek to use any records in the file as evidence against an applicant at a hearing.
It is easy to request the records from all prior hearings by using the record request form that the Secretary of State has created. An applicant should check all boxes on the form and fill in their personal information so the Secretary of State can locate their records. The completed form can be emailed to email@example.com.
Once the request form is emailed to the Secretary of State, the support services division will price the cost to copy the file, charging fifty cents per page. An invoice will be emailed or sent via regular mail to the requestor for the cost to obtain the records. The requestor should return the form with a check or money order, payable to “Secretary of State,” with their driver’s license in the memo of payment. The Secretary of State will send the records to the requestor after receiving payment. It can take several weeks to receive the records.
To obtain the form to request records, click here: Hearing Record Request Form
How do I request copies of my sworn reports from my prior DUI arrests?
Prior to attending a hearing, an applicant should be aware that the Illinois Secretary of State retains copies of all prior DUI sworn reports that were sent to their office. The State may inquire about all prior DUIs at a hearing, not just the DUI arrest that caused the revocation.
It is critical that an applicant has the information that the State will be using against them at a hearing. This allows the applicant to remain consistent with the reports on file with the Secretary of State.
An applicant’s attorney typically orders the sworn reports prior to a hearing. However, if a person seeks to request the Sworn Reports on their own, they can write a letter to request the sworn reports the following address: Illinois Secretary of State, Attn: Driving Abstracts, 2701 S. Dirksen Parkway, Springfield, IL 62723.
When making a request for sworn reports, the requestor should include a check or money order, payable to “Secretary of State,” that provides a fifty-cent payment per each DUI sworn report. For example, if a person has two DUI arrests, the check should be for one dollar. The requestor should include their name, return address, Illinois driver’s license number and date of birth on the correspondence to assist the record search and return of any documents.
Will I need to complete an evaluation and/or more treatment to attend a hearing?
On the date of hearing, the Secretary of State requires that an applicant for driving privileges provide them with an evaluation (aka “Uniform Report”) completed within the last six months. The evaluation must be accompanied by a “Treatment Needs Assessment” and a full lifetime reporting of the applicant’s chronological alcohol/drug use history. The Treatment Needs Assessment may deem prior treatment satisfactory (when documents are available), recommend further treatment, or waive treatment altogether.
There are various classifications that can result from a Uniform Report: Minimum, Moderate, Significant Risk, High Risk (Non-Dependent) and High Risk (Dependent). These classifications govern the minimum number of recommended hours, absent any waiver being given by an evaluator or treatment provider. Except for High Risk applicants, the DUI Risk Education course is required all applicants and cannot be waived by an evaluator or treatment provider under the Secretary of State rules.
The Secretary of State has very stringent standards on evaluations and treatment documents that are specific to their forum. Prior to attending a hearing, an applicant will want to ensure that they have had their attorney review the documents to ensure they have all of the required documents to attend a hearing. The content of the documents should also be reviewed by the attorney and the applicant to ensure there are no typos or errors that may cause issues at a hearing.
How long will it take to get a decision after a formal hearing?
By law, the Secretary of State has twenty days to set a hearing date upon receipt of a written request for a formal hearing. Unless the applicant makes a request for a continuance, the hearing date must be scheduled within ninety days of receipt of the hearing request.
Once a hearing is held, the Secretary of State has ninety days to issue a written decision. The decision is mailed to the applicant via regular mail or email, setting forth their findings, conclusions of law and ultimate recommendation relating to driving privileges. 625 ILCS 5/2-118.
The Secretary of State does not offer expedited decisions. Although some decisions do arrive earlier than the ninety-day statutory period allowed by law, we cannot compel the State to decide a formal hearing earlier than the law requires them to do so.
Will I automatically get my license back on my “reinstatement eligibility” date?
No. Unless subject to the five-year permit, the term, “Reinstatement Eligibility,” refers to the first date that a revoked driver is eligible to request full driving privileges at a hearing. Once a person has their Illinois driving privileges revoked by the Secretary of State, they are required to attend a hearing to obtain a driving permit or reinstatement.
For persons with two or three DUI convictions, they will be subject to a five-year BAIID permit, regardless of eligibility, before they are able to request full reinstatement. The five-year rule does not count DUIs that resulted in supervision or a reduced charge.
One notable exception to five-year permit is when a revoked driver resides out-of-state. A revoked driver that resides out-of-state, and is eligible for full reinstatement, may apply to reinstate their license without serving a five-year permit. However, the applicant must show proof of out-of-state residency to proceed with a hearing and they must license themselves in their home state if they are approved for full reinstatement.
If a revoked driver is not eligible for reinstatement, they may be able to request a hardship permit for specific driving needs if no reasonable alternative means are available. Hardship permits can be granted for a variety of reasons, such as work, school, community service, family education, daycare, and attendance at support group meetings.
Can my treatment provider prepare me for my hearing?
Secretary of State hearings involve criminal, DUI and administrative law. We do not recommend enlisting your treatment provider to guide you through a legal process, just as lawyers don’t perform treatment for clients.
Hearings involve more than knowing the questions the Secretary of State will want answered during the proceedings. Your attorney guides you on legal decisions and helps verify that your answers are consistent with all other documents in the case.
Finally, the Secretary of State requires an active law license to file an appearance to represent a person at a hearing. As such, a treatment provider cannot question you at a hearing, which allows the State to directly question you throughout the hearing. To ensure you have a proper defense, we recommend enlisting a qualified attorney.
Does the Secretary of State automatically deny everyone at their first hearing?
Over 95 percent of our clients receive driving privileges at their first hearing with our office. This includes first-time hearings, as well as persons who were denied at a prior hearing before retaining our office.
When deciding to grant driving privileges, the Secretary of State looks to whether a Petitioner has met their burden to obtain driving relief. The State doesn’t randomly deny applicants to punish them. In our experience, the State is happy to grant driving relief if an applicant is prepared for the hearing and demonstrates that they would be a safe, alcohol/drug-free driver.
If I have a pending Driving on a Suspended/Revoked ticket, can I attend a hearing to clear it before my next court date?
No. The Secretary of State does not allow a revoked driver to attend a hearing, whether formal or informal, while they have a pending ticket. 92 Ill. Adm. Code 1001.420(g) and 92 Ill. Adm. Code 1001.430(h)
Under applicable law, the State will not grant driving relief while any moving traffic offense is pending against a petitioner in any court. The only exception to this law is where the pending citation or citations are also the only cause of the current loss of driving privileges. 92 Ill. Adm. Code 1001.420(g) and 92 Ill. Adm. Code 1001.430(h)
If a person has a pending Driving on Revoked charge, they cannot attend a hearing until the court closes the case through a finding of guilt or innocence. The Secretary of State also considers the length of time that has elapsed since the arrest for Driving on a Revoked as a factor in their decision making.
It is typically not recommended to attend a hearing unless at least six months have elapsed since a Driving on Revoked arrest. However, if sufficient time has elapsed, a revoked driver can still be in the process of completing their sentence at the time of a hearing since the case is no longer “pending” for Secretary of State purposes.
If a court found me guilty of a DUI, can the Secretary of State overturn the guilty finding?
No. On occasion, prospective clients want to begin the hearing process through disputing their guilt on a DUI charge from their past. It is important for revoked drivers to recognize the difference between courtroom proceedings on their DUI case and Illinois Secretary of State hearings.
The DUI courtroom proceedings were the forum to determine guilt or innocence on a prior DUI charge(s). Once the court has found a person guilty, whether through a plea or trial, the Secretary of State accepts the conviction as guilt on the DUI offense(s).
This concept is codified in the Secretary of State code, where it is explicitly stated:
“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 his/her revocation.” 92 Ill. Adm. Code 1001.430(a)
Therefore, when a petitioner appears at a hearing for reinstatement, it is presumed that they are guilty of the DUI charges in which they were convicted. If a petitioner believes they were wrongfully convicted, the sole place to remedy the issue is with the court, rather than an Illinois Secretary of State hearing.
In cases where a petitioner was not convicted of a past DUI, the Code authorizes the Secretary of State to consider DUI charges as dispositions if they resulted in a statutory summary suspension, court supervision or where a DUI charge was reduced to Reckless Driving. The State may consider DUI dispositions even if they occurred in another state, as well as DUI dispositions that do not appear on the official driving record. 92 Ill. Adm. Code 1001.410.
As a result, it is important that a petitioner understand at the outset of the hearing process that it is not their goal to contest their guilt on DUI charges in which they received a statutory summary suspension, court supervision, conviction or where a DUI was reduced to Reckless Driving. Instead, a hearing is an opportunity to take responsibility for those arrests and demonstrate lifestyle changes since the most recent DUI arrest.
The information on this site is not legal advice and nothing on this site should be deemed to create an attorney-client relationship.