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In Illinois, the rules and regulations that govern administrative agencies are found in the Illinois Administrative Code (“IAC”). These rules must be promulgated in accordance with the Administrative Procedure Act (“APA”) 5 ILCS 100/1-1 et. seq.

In general, a proposed rule is published in the Illinois Register, giving the public an opportunity to comment and in some cases testify about the proposed rule before the Joint Committee on Administrative Rules (“JCAR”). JCAR is a joint committee of the Illinois Senate and House whose duty is to review proposed administrative rules.

The Illinois Secretary of State is an “administrative agency”. As such, his office is subject to the APA and the IAC. Clingenpeel v. Edgar, 133 Ill.App.3d 507, 487 N.E.2d 1172 (4th Dist. 1985). (Coincidentally, the Secretary of State is the record keeper for the administrative rules of all state agencies).

The IAC applicable to the Secretary of State is found at Title 92 (Transportation), Chapter II, beginning at part 1000. In addition, in some circumstances, the rules and regulations of the Secretary of State cross over into those that govern the Division of Alcohol and Substance Abuse (“DASA”). DASA’s pertnient rules are at 77 IAC §2060.101
When someone who is arrested for DUI is subsequently found guilty of that offense, the court will probably require the offender to obtain a drug and alcohol evaluation. The contents and form of the evaluation are governed by DASA rules.

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When you receive a DUI (Driving Under the Influence) in Illinois, you face different types of driver’s license consequences. Your particular situation will govern where you go for driving relief and when.

At the time of a DUI arrest, the police will ask you to submit to testing to determine your blood alcohol level. If you agree to testing that discloses a level above .08, your driver’s license is subject to being suspended. If you do not agree to testing, you will also be suspended.

In either case, the suspense takes effect even if you are not convicted of the DUI charge. You avoid a suspension only if you take a test and blow under .08.

A suspension ends after a definite period of time. The length of your suspension depends upon your previous DUI record and upon whether or not you agreed to testing.

If you refused testing and you have not had a DUI arrest in the previous 5 years, you will be suspended for 1 year. If you refuse and have had a DUI in the previous 5 years, the suspension will run for 3 years. At no time during the 1 or 3 year suspension can you apply for any driving relief, including a hardship license.

If you agree to a test and have not had a DUI in the prior 5 years, your license will be suspended for 6 months. If you refuse to take a test and have not had a DUI in the previous 5 years, your license will be suspended for 1 year.

During the first 30 days of a suspension for someone who has not had a DUI in the previous 5 years, you are not allowed to drive. After that 30 days, you are eligible to receive an MDDP. As long as you qualify for an MDDP, the Secretary of State will issue it to you automatically without a hearing.

However, if you are convicted of the DUI, either before or after your suspension ends, your driver’s license will be revoked. At that point, you will be required to appear at an administrative driver’s license hearing before the Illinois Secretary of State in order to request a work permit (“restricted driving permit, or RDP). In other words, revoked driving privileges are not automatically restored. A hearing is necessary.

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Illinois law has special provisions pertaining young adults (those under the age of 21) who experience alcohol related incidents. Perhaps surprisingly, several of these offenses can cause a suspension or revocation of driving privileges even though they were not committed in a driving-related context.

A suspension is for a definite period of time. When the time period ends, your license will be returned to you automatically provided it is not otherwise valid. By comparison, if your driver’s license is revoked, you must have a Secretary of State hearing at which you will be required to prove that you are entitled to restoration of your driving privileges.

If you are under 21 and receive a traffic ticket and the officer suspects that you may have been drinking, you will be asked to take a breath test. If you take the test and register above .00, or if you decline to take the test, you will be subject to a driver’s license suspension under the Zero Tolerance (“ZT”) laws. Driving with any amount of alcohol in your system is illegal.

If you do blow over .00, your license will be suspended for 3 months. If you refuse to blow, you will be suspended for 6 months.

If this is your second ZT ticket and you blow over .00, your license will be suspended for 1 year. If you refuse, it will be suspended for 2 years.

As a young adult, if you are convicted of illegal transportation of alcohol (open container in your vehicle) as a driver, your license will be suspended for 12 months. If you are convicted twice of that offense, your license will be revoked for a minimum of 12 months, following which you must have a Secretary of State hearing.

Those under 21 can have their driver’s license suspended for conduct that, if committed by someone over 21, would have no consequences. The Liquor Control Act of 1934 essentially makes it illegal for someone under 21 to possess, consume or purchase alcohol beverages. This is commonly referred to as a “drinking ticket”.

If you receive a drinking ticket while occupying a motor vehicle. your driver’s license will be suspended for 3 months if you receive court supervision for the offense. If you are not granted supervision and are convicted of the offense, your driver’s license will be suspended for 6 months. Prior to a case known as Webb v. White, all drinking tickets result in a 12-month suspension.

The Secretary of State has reasoned that a young adult who is consuming alcohol illegally is at great risk to be the type of person who may drink and drive in the future. The courts, in a case known as Freed vs. Ryan, have accepted this argument.

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When you arrested for DUI, there are two potentially negative consequences. The first is criminal.

You can be sentenced to jail if you are convicted of DUI. The consequences of an Illinois DUI arrest are less severe if you are eligible for, and receive, court supervision.

Court supervision is not considered a conviction. Therefore, your driver’s license will not be revoked. In addition, if you receive court supervision, the judge cannot sentence you to jail time.

Supervision for DUI is available only if you have never previously been convicted of DUI, or received court supervision for DUI, or received reckless driving as part of a plea bargain in connection with a DUI charge. Even if you meet all the criteria, you are not automatically entitled to supervision. The final decision about whether someone who is eligible for supervision receives it lies with the judge.

Since supervision is not entered on your driving record as a conviction, you may mistakenly assume that DUI supervision does not “go on your record”. That is only partially accurate.

The Illinois Secretary of State maintains a list of your driving offenses (this is called the “abstract”). There are two types of abstracts, one being known as the “court purposes” abstract and the other the “public” abstract.

The court purposes abstract is accessible only to the police, the judge, the prosecuting attorney and you. This abstract shows any DUI supervision you receive.

It stays on that record forever. It cannot be expunged. The Secretary of State will not remove it even if you obtain a Governor’s pardon. Therefore, it never really “goes away”.

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The impact an out of state offense for Driving Under the Influence (DUI) has on your Illinois driver’s license depends upon a number of factors. There is no one-size-fits-all answer.

If someone holds a driver’s license in one state (the licensing state) and receives a DUI in another state (the reporting state the Interstate Driver’s License Compact (Compact) requires the reporting state to notify the licensing state of that fact. So if you receive a DUI in Iowa, a Compact state, Iowa is supposed to report that to Illinois, also a Compact state. Illinois will enter that conviction on your driving record.

Compact states are also obligated to report breath and blood test refusals to the licensing state even if the DUI is dropped or reduced to a lesser charge. After Illinois receives a refusal report, the Illinois Secretary of State will suspend your driver’s license for 12 months if you have no other DUI record and for 3 years if you have had a DUI in the previous 5 years.

A driver’s license suspension ends automatically without the need to got through a hearing with the Secretary of State, as is required if your driver’s license is revoked. A revocation will occur if the reporting state notifies the licensing state of a DUI conviction. You can be suspended and revoked for the same offense, or only suspended if the DUI is dropped, or only revoked if you take a breath test but are convicted of the DUI.

Your right to request a driver’s license or driving permit depends, among other things, upon your driving record of DUI convictions, including those that are reported to Illinois in accordance with the Compact. If the out-of-state DUI offense results in your one and only conviction, you will be revoked for one year.

If the out-of-state conviction is one of two DUI offenses that appear on your Illinois record, you will be revoked for 5 years. If the out-of state conviction is one of three DUI offenses on your Illinois record, you will be revoked for 10 years.

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In Illinois, “driving under the influence” (DUI) is a shortcut term for a legal offense. The phrase may work in casual conversation and in news reports. However, Illinois law defines the offense of DUI in a very specific manner.

In the American judicial system, there are several ways in which laws are made. Our elected representatives can vote to pass laws that are known as “statutes”. For example, the Illinois General Assembly www.ilga.gov voted for a statute banning smoking in public places.

Starting over 500 years ago, English judges were called upon to resolve disputes among the citizenry. Over the years, the judges laid down various rules that were designed to govern a given factual situation.

These judge-made rules are known as the “common law”. Many common law concepts migrated to the United States when the colonists arrived here. Because of the common law, you cannot build a fence on your neighbor’s property.

If the General Assembly does not like the common law, it can vote to change it. Under common law England, for instance, a tenant had almost no rights because a landowner was considered superior to a renter. Now there are many statutes that protect tenants. If your house or apartment burns down, you can stop paying rent. That was not true under the common law.

Neither a statute nor the common law, however, can make a law that is contrary to the United States Constitution. The Constitution plays a particularly significant role in protect the rights of those charged with crimes, including DUI. Thus, any law must be measured against the rights secured to you under the Fourth Amendment (no unreasonable searches or seizures).

There are over 300 million people in this country engaged in billions upon billions of interactions. No Constitution, statute or common law rule can possibly account for all the possible scenarios that are bound to arise in those circumstances. Therefore, judges are called upon to give their best estimate of how a Constitutional provision or statute had intended to address a given situation.

The DUI statute provides that “[a] person shall not drive or be in actual physical control of any vehicle within this State while under the influence of alcohol.” It does NOT require the police to prove that they 1) saw you driving 2) a truck, car or motorcycle 3) drunk.

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Since 1986, Illinois law has had in place the Statutory Summary Suspension (SSS) law. If, in connection with a DUI arrest, the police ask you to provide a breath or blood sample to analyze your alcohol level, you have the choice of whether to submit or refuse.

If you submit and register over the legal limit of .08, your driver’s license will be suspended automatically on the 46th day after you provide the sample. If you have not had a DUI arrest in the previous 5 years, your license will be suspended for 6 months.

During the first 30 days of the suspension, you are prohibited from driving. For the final 5 months of the suspension, you are entitled to a Monitoring Device Driving Permit (MDDP). That permit allows you to unlimited driving privileges, but you must install a breath machine (BAIID) in your vehicle.

If you register over .08 and have had a DUI arrest in the 5 years before you provide the breath sample, your license will be suspended for 1 year. You cannot receive any type of driving privileges, even a hardship permit, during the year.

The law is designed to encourage you to provide a breath or blood sample because doing so usually makes it easier for the state to convict you of DUI. Therefore, if you refuse to submit a sample and have not had a DUI for at least 5 years, your license will be suspended for a full year. You are entitled to an MDDP during the last 11 months of the suspension.

If you refuse to provide breath or blood and it has been fewer than 5 years since you had a DUI arrest, you will be suspended for 3 years. You cannot drive at all during the entire 3 years.

Although an SSS occurs even if you beat the DUI charges your license will only be suspended. As soon as the suspension is over, your driving privileges will restored upon payment of the fee provided you are not convicted of the DUI.

But if you do not beat the DUI charges, the Secretary of State will revoke your driver’s license. A revoked driver’s license can only be restored through a driver’s license reinstatement hearing. However, until now, before the revocation could occur, the law had usually required the state to prove, beyond a reasonable doubt, that you were guilty of DUI.

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In the context of Driving Under the Influence (DUI) arrests, Illinois offers three sentencing options. You ought to be aware of these if your DUI lawyer concludes that your Constitutional rights have not been violated, if the state has complied with all procedural requirements and if the evidence against you suggests the state can prove your guilt beyond a reasonable doubt.

Most people unfamiliar with the criminal justice system consider crime to consist of offenses such as murder, rape and robbery. They are crimes, felonies. However, DUI is also a crime, a lower level crime known in Illinois as a misdemeanor. (In some circumstances, DUI is a felony but a first or second offense is a misdemeanor).

An act is a crime if our elected officials (the Illinois General Assembly) have declared that committing the act is illegal and if the consequences of committing the illegal act include monetary fines and/or jail or prison time. “Jail” refers to incarceration (lock-up) in the county jail; “prison” refers to incarceration in a state prison under the control of the Illinois Department of Corrections.

You may be aware that a DUI arrest also carriers with it driver’s license consequences. Thus, your driver’s license will be suspended if you decline to provide the officer with a breath or blood sample at the time of the arrest, or if you provide a sample that is above the legal limit of .08.

Likewise, if you are convicted of DUI, your driver’s license will be revoked. Unlike a suspension, which ends automatically, you may, following a driver’s license revocation, only get your license back by having a driver’s license hearing.

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It has not (yet) reached the point where the police can stop the operator of a motor vehicle for no reason whatsoever. You are protected from “unreasonable searches and seizures“. Judges decide where to draw the line between reasonable and unreasonable searches and seizures.

When you are in your house, the police are generally required to have more evidence before they can search your property and seize (arrest) you. In a motor vehicle, you enjoy a lower level of protection from unreasonable searches and seizures.

The police cannot stop a citizen just because “you look suspicious”. Courts have held that the police must have specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion that a stop involves. These are known as invesitgatory stops.

If the police directly observe you committing a traffic violation, such as speeding, they are entitled to stop you for a brief enough period to investigate the traffic violation. That is where your troubles can start.

Once they do stop you for a routine traffic offense, they may then further their investigation if they believe you may be driving under the influence of alcohol. Common signs are an odor of alcohol, bloodshot eyes, slurred speech, open containers in the vehicle and difficulty locating your driver’s license, registration or insurance card.

The police are also entitled to investigate if they find you pulled over to the side of the road, or asleep in your vehicle or after you have been involved in an accident, even if the accident was not your fault. They are also, under proper circumstances, permitted to erect DUI roadblocks.

It can be more complicated when the police do not actually observe you committing an offense but have reason to believe that you may have. A citizen’s complaint, from someone whom the police have reasonable grounds to believe is reliable, will justify a stop.

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The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures”. An arrest, including a DUI arrest, constitutes a seizure.

If a court (judge) finds that a seizure is unreasonable, the arrest is deemed illegal. For the most part, any evidence gathered as a result of the arrest is also illegal.

Due to United States Supreme Court decisions, the remedy for an illegal arrest is to suppress (“throw out”) the evidence. Without evidence, the state cannot prove its case, resulting in dismissal of the charges. (This is what is meant by “a technicality”).

The Constitution does not specify when a seizure is or is not “unreasonable”, a wise choice since what can be viewed as unreasonable in one time and place can be considered reasonable in another. It is left to the courts to decide where to draw the line.

The Illinois court system has three layers. The first is the trial court. This is what most people consider “court” with judges, juries, and presentation of witnesses and other evidence all playing a part.

The next level, if is either side is unhappy with the decision and has the time and money to take it further, is the appellate court. In Illinois, there are five appellate court districts, broken down by geography. So, for instance, the Fourth Appellate District, whose physical location is in Springfield, would hear an appeal from a Macon County (Decatur) case.

Appellate court cases do not involve either party presenting additional evidence. Instead, the lawyers argue the case based upon the evidence presented at the trial court.

Each of the five appellate courts consists of a three-judge panel that, after hearing the arguments and reading the briefs (papers) of the lawyers, issues a written decision usually published for all to read. All trial court judges are required to follow the rules set out in the published appellate court decisions.

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We have provided effective advice and assistance to thousands of clients facing driver's license suspensions and revocations, both in Illinois and out-of-state, including students from area colleges and universities.

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