Articles and Further Reading.

DUI Law, Drivers License Revocations and License Reinstatement Hearings.

The Road to Freedom:  A Positive Approach to License Reinstatement Hearings with the Secretary of State.

By:  Jennifer Wirth, Attorney at Law. 

 

For nearly fifteen years, I have been representing clients at Secretary of State hearings to request the reinstatement of their Illinois driving privileges.  During consultations, I have had many clients come to me with worries about the process, and sometimes, downright fear of the Secretary of State.

 

If you have one take away from this article, it should be this:  Drivers License Reinstatement can be a positive legal proceeding if you have generally improved your lifestyle and are adequately prepared by your legal counsel for the hearing.

 

Many clients have heard stories from outside sources that the Secretary of State is geared up to yell and interrogate Petitioners at their hearing.  This has not been our experience, nor should it be yours.  As an attorney that regularly defends revoked drivers at these hearings, I have never had the State yell or demean my client.  If you heard from a friend-of-a-friend that this happened to them, I assure you there was a good reason that their testimony elicited this negative reaction.  I have found these hearings to be pleasant and respectful proceedings over many years of doing them.

 

Further, the Secretary has no incentive to do a grand interrogation of every mistake you ever made in life.  The key to a controlled hearing is simply providing accurate, consistent and straightforward answers to their concerns at the outset of your hearing.  To ensure everything runs smoothly, your attorney should review your testimony, the questions they intend to ask at your hearing and all documents to ensure your statements are accurate and cover the topics discussed in a typical hearing.  As a result, the hearing itself should consist of you answering questions presented to you by your own attorney.  The State may ask follow-up questions, but it is generally minimal and respectful if you have been prepared properly.

 

Finally, I want to dispel the myth that “everyone” gets denied on their first hearing.  Since 2005, I have kept statistics on every decision provided to our clients in a Secretary of State proceeding.  Over ninety percent of our clients have received driving privileges at their first hearing with the Secretary of State on an annual basis.  The Secretary of State has no incentive to deny you for no valid reason, and in our experience, we see many good cases receive good results at the first hearing. 

 

The hearing process is designed solely to determine whether or not you are an acceptable candidate to be a safe driver and if you have resolved any problems with alcohol and/or drugs.  The punishment phase of your DUI case(s) ended in court, along with the fear of imprisonment and other penalties.  The sole issue in a Secretary of State hearing is whether or not you will receive driving privileges. 

 

Think of this process for what it truly is, rather than what you have been told to fear:  It is the moment that you requesting the freedom to drive again.  This should be a positive moment, rather than a negative one.

 

To learn more about Secretary of State drivers license reinstatement hearings, please do not hesitate to contact Jennifer Wirth for a free consultation at 312.461.0400 or jenniferwirth@msn.com.

Am I Required to Driving on the Five-Year BAIID Permit?  A Review of the Key Provisions of the Law.

By:  Jennifer Wirth.  February 25, 2017.

 

On January 1, 2016, the five-year BAIID law took effect which requires all Petitioners who have been convicted of a second or subsequent DUI to drive continuously on a BAIID permit for a period of five years prior to requesting reinstatement of their driving privileges. 

 

It is important to note at the outset of this article that Petitioners are not subject to the five-year permit if they received court supervision on their first DUI and their sole conviction resulted from a second DUI arrest.  Petitioners falling within this category are still subject to a one-year probationary period if a permit is granted in lieu of reinstatement.

 

For Petitioners who are revoked after having received two DUI convictions, the five-year BAIID permit requires installation of a BAIID device on all vehicles owned by them and mandates that they continuously drive with the BAIID in their vehicle for at least five years prior to requesting reinstatement.  625 ILCS 5/205(h)

 

In short, even if a Petitioner is technically eligible for full reinstatement, they must drive for a five-year period with the BAIID installed prior to requesting their full driving privileges again.

 

This law has few, but some notable exceptions.

 

First, if a Petitioner is an out-of-state resident and is otherwise eligible for full reinstatement, they are not subject to the five-year BAIID permit if they show valid proof of out-of-state residency and are approved at their hearing for reinstatement/full clearance of their driving privileges.

 

Second, as noted earlier, the Petitioner must have two DUI convictions.  If a Petitioner received supervision on any DUI, the DUI(s) in which supervision was granted do not count for purposes of determining eligibility for the five-year BAIID permit. 

 

Further, if a Petitioner was already “in the system” at that time this law took effect on January 1, 2016, they are not subject to the five-year BAIID permit unless if they are denied at a subsequent hearing and have had two convictions.  This typically applies in cases where a Petitioner was already driving on a hardship permit at the time the law took effect and cannot request reinstatement until the hardship period has expired.

 

Finally, although five-year BAIID permit Petitioners must maintain the interlock device in any vehicle owned by them (including joint ownership), they are eligible to request an exemption to drive employer-owned vehicles without the BAIID device installed if one-year has elapsed since the date of revocation or if they have driven on a Restricted Driving permit with a BAIID device for at least one year. 625 ILCS 5/6-205(d)(5)    

 

As all cases are different, this should not be construed as legal advice.  Any Petitioner seeking guidance on whether the five-year BAIID permit applies to their case is welcome to contact our office for a free consultation by calling 312.461.0400.

Moving Forward After a DUI Revocation:  A Guide to Drivers License Reinstatement Hearings with the Illinois Secretary of State.

By:  Jennifer Wirth.  January 2, 2018.

 

When a DUI conviction has led to the revocation of driving privileges, many revoked drivers are concerned about how to reinstate their drivers license at an Illinois Secretary of State hearing.  This article will provide a basic overview of the Secretary of State hearing process and the considerations that accompany a hearing.

 

Under 625 ILCS 5/6-205, a mandatory drivers license revocation occurs when a person is convicted of driving under the influence of alcohol or drugs (or a similar provision of a local ordinance), pursuant to 625 ILCS 5/11-501, or a substantially similar offense occurring out-of-state under 625 ILCS 5/6-206(a)(6).  A revocation is effective for an indefinite period of time until the revoked driver is eligible for reinstatement and has satisfied the Secretary of State that they are not a danger to public safety and/or welfare.

 

Although some exceptions apply, the Secretary of State generally determines eligibility for reinstatement based on the number of prior DUI convictions.  When a person has received one DUI conviction, they will generally be eligible for full reinstatement within one year of the revocation being entered by the Secretary of State.  A prior supervision on a DUI charge does not count toward reinstatement eligibility, but will still be considered at a Secretary of State hearing when determining if the Petitioner is an acceptable candidate for driving privileges.

 

If a person has two or three DUI convictions, they will be required to drive on a continuous five-year BAIID permit prior to consideration for their drivers license, regardless of reinstatement eligibility.  Some exceptions to the five-year rule exist, such as when the Petitioner resides out-of-state or if they were “in the system” with an active permit that has not lapsed since the law became effective on January 1, 2016.  If a five-year petitioner is denied at a future hearing or loses their permit for any reason, they will be subject to a five-year BAIID permit at any future hearing.

 

If a Petitioner has had four or more DUI convictions prior to January 1, 1999, they may make an application for full reinstatement of their driving privileges upon becoming eligible to do so.  If any of the four DUI convictions occurred after January 1, 1999, the Petitioner is only eligible for a lifetime permit if they live in Illinois.  One notable exception to the lifetime revocation law applies when a Petitioner can demonstrate that they have resided outside of Illinois for a ten-year period.  In cases where a Petitioner is given clearance due to out-of-state residency after four or more DUI convictions, the lifetime revocation will be re-imposed if they establish Illinois residency in the future.  If Illinois residency is reestablished, the Petitioner will be subject to a lifetime permit if granted driving relief upon return to Illinois.

 

In some cases, a Petitioner may apply for a hardship permit if they are not yet eligible for full reinstatement of their drivers license.  Hardship permits can be granted to drive for many purposes, including employment, educational, support/recovery groups, medical and/or to drive children to school or daycare.  When applying for a hardship permit, the petitioner must demonstrate that there is an extreme difficulty in getting to the desired location and they have no reasonable means of transportation available to do so.  “Mere inconvenience” is not enough to establish a hardship.  Further, a Petitioner seeking a hardship permit will still need to attend a hearing with the Secretary of State and meet the burden of showing they have resolved their problem with alcohol/drugs and will not endanger public safety and/or welfare if given such a permit.

 

When a Petitioner seeks to obtain driving privileges after a DUI revocation, they can do so by attending an informal or formal hearing, depending on their case.  Generally, an informal hearing is only available to Petitioners who have one DUI conviction, as well as no summary suspension on their record from a prior DUI.  An informal hearing consists of a meeting with a Secretary of State hearing officer to answer questions about their DUI, treatment and present lifestyle.  Petitioners may bring counsel to an informal hearing.

 

Generally, a formal hearing is necessary when a person has two or more DUIs in their history and is seeking to obtain any form of driving relief after revocation, including a permit.  In order to attend a formal hearing, a Petitioner (or their counsel), must submit a written request to the Illinois Secretary of State for such hearing and state what type of driving relief they are requesting, such as full reinstatement and/or a specific type of permit.  A formal hearing is presided over by a Secretary of State Hearing Officer and a Secretary of State Representative is also present to protect the State’s interests.   The proceedings are recorded and all parties, including your counsel, are allowed to ask questions during the hearing.

 

When a Petitioner attends a formal hearing, the Petitioner is required to demonstrate that they have resolved their problem with alcohol/drugs and granting their application to drive would not pose a risk to public safety and/or welfare.  At the beginning of a formal hearing, both the Petitioner (whether pro se or by counsel) and the Secretary of State submit evidence in support of their case.  The required documentation differs based on the Petitioner’s classification in their evaluation, as well as the overall facts of their case.  It is strongly advised that a Petitioner retain a qualified attorney to represent them in these proceedings and review all documentation prior to submission to the Secretary of State.  The State retains all records submitted at the hearing and the documents can be used against a Petitioner at any future hearing if they are denied full reinstatement of their drivers license or are revoked in the future for another offense.

 

During a formal hearing, a Petitioner’s attorney has the right to question their client in an attempt to demonstrate that their client is an acceptable candidate for driving relief.  At a minimum, a Petitioner should be prepared to answer questions relating to their overall driving record, the facts of each DUI arrest, their lifetime alcohol/drug use history, their treatment experience, as well as any positive lifestyle changes since their last DUI arrest.  It is strongly advised that a Petitioner retain counsel to help obtain the documents necessary to provide accurate answers, as well as review their testimony prior to attending a hearing with the Secretary of State.

 

At the conclusion of a hearing, the Secretary of State does not render their decision immediately.  Petitioners will receive a written decision of the result within ninety days of their formal hearing.  If driving relief is granted, the decision will provide accompanying documents to advise the Petitioner on how to obtain their license and/or Restricted Driving Permit.

 

Secretary of State hearings are complicated and applicants should strongly consider retaining qualified counsel prior to attending a hearing to request driving privileges.  Although this article provides a basic overview of the process, there are many aspects of the hearings that differ based on the specific facts of a case.  The information in this article is not intended to serve as legal advice and Petitioners should seek the advice of experienced counsel prior to attending a hearing with the Illinois Secretary of State.

Drivers License and DUI-Related Implications for Medical Cannabis Patients in Illinois.

By:  Jennifer Wirth, Attorney at Law

January 26, 2018

 

On January 1, 2014, the Compassionate Use of Medical Cannabis Pilot Program took effect in Illinois, which allows for medical cannabis use for qualifying individuals. 410 ILCS 130.  The Act remains effective until July 1, 2020 and is subject to renewal thereafter.  The emergence of medical cannabis in Illinois creates complex legal issues in many areas of practice, including administrative, civil and criminal proceedings.

 

Basic Overview of Medical Cannabis Law.

 

Under the Illinois Medical Cannabis law, a person that is diagnosed with one or more of the enumerated “debilitating medical conditions,” as defined by the Illinois Department of Public Health, can apply for a medical cannabis registry identification card.  The law covers many debilitating medical conditions, including PTSD, seizures, cancer and Alzheimer’s Disease.  77 Ill.Adm.Code 946.10.

 

Individuals seeking to obtain medicinal cannabis must register with the Illinois Department of Public Health to apply for a registry ID card.  The applicant must provide a written certification from a physician that they have one or more of the specified debilitating medical conditions covered by the Medical Cannabis Pilot Program, as well as confirmation that the physician is treating or managing treatment of the specific condition(s).  A bona-fide physician/patient relationship must exist for a physician to provide a written certification.  410 ILCS 130/10(y).

 

If approved, legally patients may obtain a registry ID card that allows for the patient to obtain an adequate supply of medicinal cannabis so long as they have a valid prescription from their medical caregiver.  An adequate supply has been deemed to constitute a prescription of no more than 2.5 ounces of usable cannabis in a 14-day period and must be obtained through an intrastate source.  If this amount is insufficient, a patient may apply for a waiver through submitting a qualifying statement from their physician that a greater quantity is necessary to properly treat their condition, subject to the guidelines of the Department of Public Health.   410 ILCS 130/10(a). 

 

Identifying Drivers Who Are Registered Medical Cannabis Patients.

 

The Compassionate Use of Medical Cannabis Pilot Program Act has had a noteworthy impact in the field of Illinois drivers licensing and DUI law.  For law enforcement purposes, the Illinois Department of Public Health must notify the Illinois Secretary of State when they have issued a medical cannabis registry ID card.  Upon receipt of notice, the “Secretary of State shall make a notation on the person’s driving record stating that the person is a registered qualifying patient who is entitled to lawful medical use of cannabis.”  If, in the future, the person no longer holds a valid registry card, the notation should be removed from a driving record by the Secretary of State.  410 ILCS 130/60 (d).

 

Possession of Medical Cannabis in a Vehicle.

 

A valid registry cardholder should take precaution while possessing their medical cannabis in a motor vehicle.  The Illinois Vehicle Code prohibits any valid ID registrant from using medical cannabis in the passenger cabin as a driver of a vehicle.  Further, valid registrant drivers and passengers, as well as caregivers and specified agents, cannot possess medical cannabis within any area of their vehicle without it being kept in a “sealed, tamper-evident medical cannabis container.” 625 ILCS 11-502.1

 

A violation of the Possession of Medical Cannabis law is considered a Class A Misdemeanor and can be used as a basis to revoke medicinal cannabis registration for a period of two (2) years from the end of the imposed sentence.  625 ILCS 11-502.1.  Upon conviction for violating the possession law, the Illinois Secretary of State will impose a drivers license suspension for the first and second conviction(s).  If a registrant violates this law for a third or subsequent time, the Secretary of State will revoke the offender’s driving privileges.  92 Ill.Adm.Code 1040.44

 

Interaction Between Medical Cannabis Registration Card Holders and DUI Law.

 

A valid registration card for the use of medical cannabis does not prohibit a DUI arrest, nor is it a defense to guilt, if the registrant is deemed to be impaired by cannabis while operating or while being in actual physical control of a vehicle.  Under the Illinois DUI law, a medical cannabis registrant can be charged with a DUI if they are deemed to be impaired by the tetrahydrocannabinol (“THC”) concentration in their whole blood or other bodily substance.  625 ILCS 5/11-501(a)(7)

 

A valid registrant ID holder is deemed to show cannabis impairment for DUI purposes if, within two hours of driving or being in actual physical control of a vehicle, the THC concentration in their whole blood is 5 nanograms or greater, or alternately, if 10 nanograms or more of THC is detected through other bodily substance testing.  Conversely, a valid registrant is not deemed to be under the influence of marijuana if they test below these limits within the prescribed time period.  625 ILCS 11-501.2(b-5)(1) and 625 ILCS 11-501.2(b-5)(2)

 

Further, law enforcement can require standardized field sobriety testing to determine if valid medical marijuana registrants are under the influence of cannabis for DUI purposes.  The results of any field sobriety testing may be used against the medical cannabis registrant at any civil or criminal trial or proceeding and the refusal or failure of such tests can result in suspension of a cardholder’s driving privileges.  However, the cardholder may admit evidence that they lacked the physical capacity to perform the field sobriety tests once the results are admitted in a civil or criminal trial or proceeding, if applicable as a defense.  625 ILCS 5/11-501.2(6)(a-5)(1-3)

 

Drivers License Revocation Hearings and Medical Cannabis

 

In drug/alcohol-related drivers license revocation hearings, valid registrants are not required to prove abstinence from medical cannabis at an Illinois Secretary of State hearing if they are deemed High Risk, Dependent, so long as they are able to meet the burden of showing that they have been stable in the program for at least one year and provide a letter from their primary counselors and attending physician.  Their physician must state the condition for which cannabis has been prescribed, their progress and status in the program, and the length of time that the physician anticipates that the medical cannabis registrant will be in the program and taking the prescribed cannabis.  However, in such cases, the registrant will be required to demonstrate abstinence from alcohol and all other non-qualifying prescription and illegal drugs. 92 Ill.Adm.Code 1001.440(e)(5)

 

Conclusion

 

As medical cannabis laws continue to expand across the nation, the ever-changing legal landscape surrounding this trend continues to impact many areas of practice.  In the coming years, issues surrounding both medical and recreational use of cannabis will continue to develop and practitioners will be confronted with many issues of first impression in this emerging industry.

 

The information in this article is not intended as legal advice and does not create an attorney-client relationship.  Readers should consult with a qualified attorney with any legal questions.

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Chicago, Illinois 60604

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© 2018.  Jennifer Wirth.

Jennifer Wirth is licensed

to practice law in Illinois.

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