The formal hearing process Lawyer Manual

General Considerations

Request for Hearing

All formal hearings are conducted in Springfield, Chicago, Mount Vernon and Joliet. A request for formal hearing is initiated by request in writing and payment of a fee of $50.00. The Secretary of State is required to set the hearing date within ninety (90) days of the request for hearing. Copies of the Notice of Hearing will be sent to both counsel and the client. 625 ILCS 5/2-118(a); 92 Ill. Administrative Code, ch. II, sec. 1001.70.

Substitution of Assigned Hearing Officer

Under 92 Ill. Administrative Code, ch. II, sec. 1001.100(c), a petitioner may seek substitution of a hearing officer by written petition. Even if the petition is denied, the petitioner may withdraw a request for hearing and after that file a new request, as the result of which a new hearing officer will be assigned.

Authority of Hearing Officer

The hearing officer has the authority to rule on all motions, administer oaths, to subpoena witnesses or documents at the request of any party, to examine witnesses and to rule on the admissibility of testimony and evidence. 92 Ill. Admin. Code, ch. II, sec. 1001.100(c).

Rules of Evidence and Burden of Proof

Generally speaking, the technical rules of evidence do not apply at formal hearings. Regardless of the existence of any common law or statutory bar to the admissibility of specific evidence, such evidence is admissible so long as it is of the sort commonly relied upon by prudent people in the conduct of their affairs. However, irrelevant or immaterial evidence will be excluded. See 92 Ill. Administrative Code, chap. II, sec. 1001.100(e).

The burden of proof rests with the petitioner. The standard is the preponderance of the evidence in non-alcohol/drug-related hearings, and an alcohol/drug-related hearings the standard is clear and convincing evidence. 92 Ill. Administrative Code, ch. II, sec. 1001.100(s), 92 Ill. Administrative Code, ch.II, sec. 1001.400(b)2).

Record of proceedings

Present at the hearing besides the hearing officer is an attorney who acts on behalf of the Secretary of State and, as a practical matter, as an adversary to the petitioner. 92 Ill. Administrative Code, chap. II, sec. 1001.100(c). A permanent record of the proceedings is made by means of a court stenographer or the use of an electronic recording device. 92 Ill. Administrative Code, chap. II, sec. 1001.100(u).

Conduct of the hearing

The actual conduct of the hearing as well as the specific procedure utilized varies to a certain extent upon the personal dictates of the hearing officer. For example, some hearing officers will allow the attorney for the Secretary of State to proceed with an examination of the petitioner before the attorney for the petitioner is allowed to proceed. The majority of hearing officers, however, follow the practice of allowing the petitioner's counsel to proceed with questioning first and the attorney for the State to after that cross-examine. If counsel for the petitioner is uncertain as to any procedural variables, he/she should request a pre-trial conference to clarify these matters. Regardless of the personal preferences of the hearing officer, it can generally be said that the following elements are part of every formal hearing.

Opening Statement

Counsel will be allowed to make an opening statement.

If counsel chooses to make an opening statement, the relevant issues should be outlined, primarily as determined by, e.g., the client's driving history, history of alcohol/drug use, or other relevant facts and what it is expected that the evidence to be presented will demonstrate. 92 Ill. Administrative Code, ch.II, sec. 1001.100(p).

Secretary of State's offer of documentary evidence

The attorney for the Secretary of State will offer into evidence the request for a hearing, notice of hearing and the client's driving record (including a PDPS national database record check) together with documentation for supporting the record. The attorney for the Secretary of State will also customarily attempt to introduce, if available, prior alcohol evaluations submitted to the Secretary of State by the client; prior orders from prior hearings; and, if available, copies of any traffic accident reports on file with the Secretary of State or the Illinois Department of Transportation (particularly in cases involving death or serious personal injury).

Counsel should object to the introduction of a prior order from a formal hearing if it contains findings of fact, conclusions or opinions that are not accurate. Such objection should be based upon the fact that the formal hearing is a de novo proceeding and that therefore matters contained in a prior order are irrelevant and prejudicial. Although the hearing officer will nevertheless overrule such an objection and take notice of all prior formal hearings, counsel should still object to order to preserve the record for review. 

See 92 Ill. Administrative Code, ch. II, sec. 1001.360(a).

Concerning accident reports, an objection, if appropriate, may be made upon the basis of lack of foundation, hearsay, and the confidentiality accorded such reports under Illinois law. 625 ILCS 5/11 412.

Driver's Prima Facie Case

The presentation of the client's case in chief should include, at a minimum, the following:

• Direct examination of the client as to: marital status; age; number and ages of dependents; educational background; recitation of facts and circumstances appearing on the driving record; efforts at rehabilitation of driving habits and/or attitude including attendance at a driver education or remedial education program; involvement in any alcohol/drug abuse treatment or remedial education programs (if alcohol/drug use is in issue); involvement in any ongoing counseling or self help group such as Alcoholics Anonymous (if alcohol/drug use is in issue); drinking / drug use pattern prior to the last DUI arrest; change in drinking / drug use habits and why any change occurred (again, if alcohol/drug use us in issue); nature of employment, including the days, hours and radius driving is required; whether driving is required only to and from work or also on the job; nature of the hardship (if hardship is an issue) availability of public transportation; how driving needs have been met since the loss of driving privileges; details regarding any arrest(s) for driving while revoked/ suspended;
   
• Introduction of written verification of a client's completion of any driver improvement or remedial education program and the introduction of the written alcohol evaluation/treatment documentation (if applicable);
   
• Introduction of character reference letters; drinking habit verification letters; abstinence letters (if applicable); letters verifying AA attendance (if applicable) and employment verification letters;
   
• Examination of any witnesses appearing on the client's behalf.

Cross-examination of driver

After the attorney for the Secretary of State has had an opportunity to cross-examine the client and each witness appearing on his behalf, counsel will be given an opportunity for redirect examination of his witness. Again, counsel should remember at all times that the burden of proof rests with the client and that the standard of proof is the preponderance of evidence or clear and convincing evidence (See 1.41 above). 92 Ill. Administrative Code, ch. II, sec. 1001.100(r),(s); 92 Ill. Administrative Code, ch. II, sec. 1001.400(b)2).

Closing statements and close of the hearing

Counsel for the petitioner and the Secretary of State will be granted an opportunity to make a closing statement. If counsel chooses to make a closing statement, its objective should be to summarize the evidence presented as it relates to the ultimate issues with primary emphasis on the question of whether the petitioner has met his/her burden of demonstrating that he/she is not a risk to the public safety and welfare.

Upon the close of the hearing, the hearing officer will announce that the decision will be taken under advisement and that a recommendation will be made to the Secretary of State's review representative. 

At the time a decision is rendered, both counsel and the client will receive copies of the final written order. The Order will contain the recommendation of the hearing officer, decision of the Secretary of State, findings of fact, conclusions of law, and recitation of applicable statutes and rules. The Secretary of State is required to render a decision within ninety days of the conclusion of the hearing. 625 ILCS 5/2-118(d); 92 Ill. Administrative Code, ch. II, sec. 1001.110.