Illinois Non-First DUI Offenders Now Eligible for RDP

The Old Rule: Three years of hard-time statutory summary suspension

Many attorneys who for years practiced Illinois DUI law grew accustomed to a dilemma that arose in certain non-first offender DUI cases where a client's refusal of chemical testing after a DUI arrest led to a mandatory three-year statutory summary suspension of driving privileges with no possibility of any driving relief.

In these cases, if the attorney did not achieve a rescission of the statutory summary suspension, the client was sidelined from driving for a full three-year period.

Debate often occurred among Illinois DUI lawyers on the question of what would have been better for the client if the following options arose in any given case:

• Would it have been better for the client to have incurred a conviction on the DUI charge and somehow to have achieved a rescission of the statutory summary suspension?
• Or would it have been better for the client to have served the full three-year statutory summary suspension while alternatively to have avoided a conviction for the DUI charge?

Obviously, it may have been best for the client if both the DUI charge was reduced or dismissed and the statutory summary suspension was rescinded. But this was an unlikely scenario in most cases.

So, what seemed to be the better option?

Many experienced DUI lawyers pondering these two outcomes concluded a DUI conviction would have been the better route if the option to choose between a conviction and a three-year statutory summary suspension somehow arose in a given case.

This was because if a conviction entered and the client's driving privileges consequently were revoked, but there was a rescission of a three-year statutory summary suspension, at least in that situation the client likely would have been eligible to pursue a "Restricted Driving Permit" ("RDP") through hearing with the Office of the Illinois Secretary of State ("Secretary of State").

(Section 625 ILCS 5/6-205(a)(2) calls for the mandatory revocation of driving privileges upon conviction for DUI. Section 625 ILCS 5/6-205(c)(1) provides for the issuance of an RDP to allow driving during a DUI revocation and before full reinstatement of driving privileges).

If, alternatively, the client avoided a conviction on the DUI charge but had to serve a three-year statutory summary suspension, no RDP or permit of any kind was available.

What laws previously prohibited non-first offenders from getting any driving relief?

Working in combination, two laws prohibited non-first offenders from obtaining any driving relief during the period of statutory summary suspension.

The first of these laws provided that first offenders were eligible to drive during the period of statutory summary suspension with a "Monitoring Device Driving Permit" ("MDDP"), but that non-first offenders were not. See, 625 ILCS 5/6-206.1.

The second of these laws prohibited non-first offenders from obtaining an RDP. Specifically, Section 625 ILCS 5/6-208.1(g) stated:

"Following a statutory summary suspension of driving privileges pursuant to Section 11-501.1 where the person was not a first offender, as defined in Section 11-500, the Secretary of State may not issue a restricted driving permit." See, Public Act 98-1172, eff. 1-12-15.

In cases where achieving a rescission by agreement did not arise, the attorney's standard method of avoiding or terminating the statutory summary suspension was to accomplish rescission through a contested hearing on a petition to rescind. Section 625 ILCS 5/2-118.1 contains the procedures governing petitions to rescind.

What laws establish the statutory summary suspension in the first place?

Statutory summary suspensions occur in Illinois DUI cases because Illinois law mandates that drivers arrested for DUI who either fail or refuse chemical testing face the statutory summary suspension of their Illinois driving privileges.

The statutory summary suspension is administrative in nature, is administered by the Secretary of State, and is not contingent upon the disposition of the underlying DUI charge. In most DUI cases, the statutory summary suspension takes effect before the DUI charge is resolved in court.

Section 625 ILCS 5/11-501.1 contains Illinois' "implied consent" law and provides for the statutory summary suspension of driving privileges in DUI cases. The suspension begins forty-six days after the driver has been given a notice of the suspension. See, 625 ILCS 5/11-501.1(g).

The duration of the statutory summary suspension depends on whether the driver is a "first offender" and on whether the driver failed or refused chemical testing. See, 625 ILCS 5/6-208.1.

A first offender who fails chemical testing is subject to a six-month statutory summary suspension. A first offender who refuses chemical testing faces a statutory summary suspension of one year.

A non-first offender who fails chemical testing also must serve a one-year statutory summary suspension. Finally, a non-first offender who refuses chemical testing is required to serve a statutory summary suspension of thirty-six months.

What is the definition of "first offender?"

A first offender is a person who has not had a previous conviction or court supervision for DUI in or outside Illinois, or a statutory summary suspension, within five years prior to the date of the currently-alleged DUI offense. See, 625 ILCS 5/11-500.

What law allows a first offender to get an MDDP?

The MDDP rules are found in Section 625 ILCS 5/6-206.1.

First offenders are eligible to obtain an MDDP that allows driving a vehicle, during the statutory summary suspension, with a "Breath Alcohol Ignition Interlock Device" ("BAIID") installed. Non-first offenders are not allowed to obtain an MDDP.

Under the law, first offenders automatically are enrolled in the MDDP program. If a driver does not wish to participate in the program, he or she must formally opt out.

Drivers under age 18, or who were previously convicted of reckless homicide or aggravated DUI involving death, or whose driving privileges are otherwise invalid, or whose current DUI charge resulted in death or great bodily harm are not eligible to participate in the MDDP program.

Why and how are non-first offenders NOW eligible for driving relief?

Illinois' hard-time statutory summary suspensions for non-first offenders remained in effect until the end of 2015. Then, something changed.

Pursuant to the enactment of Public Act 99-467, starting January 1, 2016, non-first offenders, though still ineligible to obtain an MDDP, suddenly became eligible during the term of the statutory summary suspension to seek an RDP from the Secretary of State.

With Public Act 99-467, the legislature struck certain language from Section 625 ILCS 5/6-208.1. The Act excised subsection (g) from the statute in its entirety. This removal lifted the ban on non-first offenders obtaining any type of driving relief during the period of statutory summary suspension in one fell swoop.

In a word, although it did nothing to alter the impossibility of non-first offenders obtaining an MDDP, this legislative action immediately lifted the blockcade on non-first offenders pursuing an RDP.

Now, non-first offenders serving a statutory summary suspension can petition for an RDP through a hearing with the Secretary of State.

An RDP may issue to allow a non-first offender to drive for employment purposes, to receive or participate in medical, alcohol or substance abuse treatment, to attend school, or to transport children, elderly persons, or persons with disabilities living in the petitioner's household.

To receive an RDP, the petitioner must prove to the Secretary of State that no alternative means of transportation is reasonably available, that the petitioner will not endanger the public safety or welfare, and that if an RDP does not issue the petitioner will suffer undue hardship. See, 625 ILCS 5/6-205(c)(1).

Clearly, the process by which the non-first offender serving a statutory summary suspension would request RDP driving relief differs drastically from the method by which a first offender would receive an MDDP.

Whereas first offenders automatically are eligible to participate in the MDDP program with no hearing required, non-first offenders seeking an RDP must petition for and submit to a hearing to obtain relief.

Nevertheless, the days where a non-first offender serving a three-year statutory summary suspension with no possibility of any driving relief due to the existence of the statutory summary suspension have ended in Illinois.

Before this change in Illinois DUI law, many Illinois DUI attorneys, as well as their clients, decried what appeared to be an excessively harsh administrative penalty imposed in non-first offender refusal cases.

Now, although non-first offenders still cannot obtain an MDDP, at least they have the opportunity to seek some alternative form of driving relief.

This alteration of Illinois statutory summary suspension law can be viewed as a positive development-- one that holds non-first offenders accountable administratively but still allows them to avoid the severe penalty of no driving at all for three consecutive years.

HoffmanLaw Defends Drivers in Waukegan DUI Court

The HoffmanLaw Office defends drivers facing Lake County, Illinois DUI charges in the Lake County DUI courts. The HoffmanLaw Office has handled Lake County DUI cases in the Waukegan courthouse for nearly twenty years.

We have a strong record of success in defending clients against all types of Lake County DUI offenses. DUI cases we defend at the Waukegan courthouse include charges based on alcohol, drugs, intoxicating compounds, cannabis, or any combination of those substances. We have many years' experience with misdemeanor and felony Lake County DUI prosecutions.

The HoffmanLaw Office offers you an effective, highly experienced Waukegan DUI attorney. We have the experience and commitment necessary to actively and successfully defend your case. We are prepared to deal with all aspects of your DUI case, including issues pertaining to your DUI charges and the statutory summary suspension of your driving privileges.