Reinstatement and issuance of restricted driving permits Lawyer Manual

Statutory References

The Illinois Vehicle Code ('I.V.C.'), 625 ILCS 5/1-101, et. seq. grants the Secretary of State authority to fully reinstate driving privileges or to grant restricted driving permits.

Issuance of Restricted Driving Permit after Revocation

625 ILCS 5/6 205(c)(1), in part, that:

Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether the court makes the recommendation may, upon application, issue to the person a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner's residence and petitioner's place of employment or within the scope of the petitioner's employment related duties, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to a medical facility for the receipt of necessary medical care or to allow the petitioner to transport himself or herself to and from alcohol or drug remedial or rehabilitative activity recommended by a licensed service provider, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to classes, as a student, at an accredited educational institution, or to allow the petitioner to transport children, elderly persons, or disabled persons who do not hold driving privileges and are living in the petitioner's household to and from daycare; if the petitioner can demonstrate that no alternative means of transportation is reasonably available and that the petitioner will not endanger the public safety or welfare; provided that the Secretary's discretion shall be limited to cases where undue hardship, as defined by the rules of the Secretary of State, would result from a failure to issue the restricted driving permit.

Issuance of Restricted Driving Permit after Suspension

625 ILCS 5/6 206(c)(3) of the I.V.C. provides, in part, that:

[T]he Secretary may upon application, to relieve undue hardship (as defined by the rules of the Secretary of State), issue a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner's residence and petitioner's place of employment or within the scope of the petitioner's employment-related duties, or to allow the petitioner to transport himself or herself, or a family member of the petitioner's household to a medical facility, to receive necessary medical care, to allow the petitioner to transport himself or herself to and from alcohol or drug remedial or rehabilitative activity recommended by a licensed service provider, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to classes, as a student, at an accredited educational institution, or to allow the petitioner to transport children, elderly persons, or disabled persons who do not hold driving privileges and are living in the petitioner's household to and from daycare. The petitioner must demonstrate that no alternative means of transportation is reasonably available and that the petitioner will not endanger the public safety or welfare.

Reinstatement After Revocation

Once a license is revoked, reinstatement is not automatic and will not occur until the Secretary of State, upon application, determines that to grant reinstatement will not endanger the public safety or welfare, O'Neil v. Ryan, 301 Ill. App. 3d 392, 703 N.E. 2d 511, 234 Ill. Dec. 650 (1st Dist. 1998).

625 ILCS 5/6-208(b) of the Vehicle Code contains the following restrictions on applications for reinstatement:

1. Persons convicted of the offense of leaving the scene of a motor vehicle accident involving death or personal injury (625 ILCS 5/11-401(b)); may not make application for reinstatement for three years from the date of revocation.

2. Persons convicted of the offense of reckless homicide (720 ILCS 5/9-3) may not make application for reinstatement for two years from the date of revocation or for two years from the date of release from a period of imprisonment, whichever is later.

3. Persons convicted of committing a second violation within twenty years of:

• driving while under the influence (Vehicle Code Sec. 11-501 or a similar provision of a local ordinance);
• leaving the scene of a fatality or personal injury accident (625 ILCS 5/11-401(b));
• reckless homicide (720 ILCS 5/9-3); or
• any combination of the above,

may not make application for reinstatement for five years from the date of revocation.

4. Persons convicted of committing a third violation of the offenses listed in paragraph c above or a combination thereof may not make application for reinstatement for ten years from the date of revocation.

Please note that similar out-of-state offenses are included and that the 20-year period in paragraph c above is calculated using the date the offense was committed. 625 ILCS 5/6-208(b)(2)(3).

It should be further noted that despite these extended periods of revocation, such persons may still apply for a restricted driving permit. See 625 ILCS 5/6-205(c).

Effective January 1, 1999, persons convicted of committing a fourth or subsequent violation of the offenses listed in paragraph c above are permanently barred from seeking reinstatement in the future. P.A. 90-738. The disqualifying offense must have occurred after January 1, 1999, effective date. See 625 ILCS 5/6-208(b)(4).

This prohibition extends to the issuance of a restricted driving permit. See 625 ILCS 5/6-205(c)(1) and 6-206(3).

Limitations on Relief During Period of Statutory Summary Suspensions and Revocations

The Secretary of State is prohibited from issuing driving privileges where:

1. The person has a summary suspension in effect and is a second offender as defined in 625 ILCS 5/11-500;
2. During the first year of revocation where the person is revoked as the result of a second or subsequent conviction for DUI.

625 ILCS 5/6-205 and 6-206.

Rules and Regulations of the Office of the Secretary of State

The Office of the Secretary of State has promulgated extensive rules and regulations governing not only the procedural aspects of its hearings but also governing the issuance of restricted driving permits and reinstatements. 92 Ill. Administrative Code, ch. II, sec. 1001 et. seq.

These rules are specific and strictly enforced by the Secretary of State. Failure to comply with any applicable rule may result in denial of a request for relief. Accordingly, the attorney should carefully review these rules and determine the applicability of those rules to the client's particular case.

For example, no consideration for relief will be given to an individual who has a traffic case pending against him/her. 92 Ill. Administrative Code, ch. II, secs. 1001.420(g).

A person otherwise eligible for full reinstatement of his/her driver's license and privileges usually will only be issued a restricted driving permit on a probationary basis before further consideration for full reinstatement. (92 Ill. Administrative Code, ch. II, sec. 1001.420(i)).

Generally, a person is required to drive on a permit for at least 75% of the time for which it was issued before being considered for reinstatement (and provided that such person is otherwise eligible for reinstatement). 92 Ill. Administrative Code, ch. II, sec. 1001.430(i).

The rules also specify those factors to be considered by the Secretary of State in determining whether and what type of relief should be granted. Factors such as the client's age; prior offenses for driving while suspended/revoked; accident history; demeanor and credibility of the client; credibility of documentary evidence; driving history in other states; client's overall prior driving record; efforts at rehabilitation; and degree of hardship will be considered among others. 92. Ill. Administrative Code, ch. II, sec. 1001.420(e) and 1001.430(c).

Applicable Case Law

Restricted Driving Permit Balancing the Interests of the Public Safety and Welfare v. Under Hardship

In Illinois, once driving privileges are revoked, the restoration of such privileges is not automatic. Murdy v. Edgar, supra; People v. Turner, 64 Ill. 2d 183, 186 (1976).

In Foege v. Edgar, supra, the First Appellate District, in a case of the first impression, was called upon to consider under what circumstances the Secretary of State should be required to grant, upon application, a restricted driving permit.

Although the statute gives the Secretary of State discretion to issue a restricted driving permit only in cases where undue hardship would result from a failure to issue a restricted driving permit, we believe that this limitation does not mandate that the Secretary of State issue a restricted driving permit merely because undue hardship would result. The language of the statute is permissive only and not mandatory. Foege, 65 Ill. Dec. 753 at 755.

This case has subsequently been cited with approval by the only Illinois Supreme Court case considering the issues raised in these types of hearings. Murdy v. Edgar, supra, later affirmed by the Illinois Supreme Court contains an excellent discussion regarding the standards governing the issuance of restricted driving permits.

Granting a restricted driving permit is permissive and not mandatory, and before a restricted permit is issued, the Secretary must weigh the public interest against the hardship suffered by the applicant. Murdy, 73 Ill. Dec. 722 at 726.

Reinstatement

The Court in Murdy v. Edgar, supra, discussed not only the standards governing the issuance of restricted driving relief but also went on to contrast these standards with those governing the granting of full reinstatement under 625 ILCS 5/6 208(b):

The standard to be applied by the Secretary under section 6 208 of The Illinois Vehicle Code is similar to that involved when issuing a restricted driving permit. In each case, the pertinent inquiry is the danger to the public in allowing the applicant to drive. Under sections 6 205 and 6 206, however, hardship is to be taken into consideration apart from public safety and welfare. Section 6 208 mandates no consideration of hardship to the applicant. A further difference is in the scope of rights granted. Under section 6 205 and 6 206, a restricted driving permit may only be issued for driving between a residence and a place of employment or other proper limits. Relief under section 6 208 contains no limitations. Murdy, 73 Ill. Dec. 722 at 727.

Consideration of the Scope of Right to Be Granted The Restricted Driving Permit v. Reinstatement.

It was this distinction regarding the scope of driving rights to be accorded to a person, i.e., whether they are granted only a restricted driving permit rather than full reinstatement, that served as the basis for the Court's decision in Breiner v. Edgar, 130 Ill. App. 3d 1010, 474 N.E. 2d 1373 (Ill. App. 4th Dist. 1985). In that case, the Court denied the plaintiff's request for full reinstatement because the plaintiff had failed to demonstrate that he would not be a risk to the public safety and welfare. The Court went on, however, in granting the plaintiff's request for a restricted driving permit, to state:

. . . the Secretary argues that even if the likely loss of plaintiff's full-time employment constitutes an undue hardship, the Secretary's decision was proper because, based on his past driving record, plaintiff would pose a severe threat to the public safety and welfare which would outweigh any hardship suffered by the plaintiff.
We might agree with this argument if the plaintiff were being granted unlimited driving privileges. However, we order that the Secretary issue a restricted driving permit to plaintiff which would allow him to drive to and from work, and to do any reasonable, necessary driving required by his work. Such restrictions will allow plaintiff to retain his full-time employment but will prevent the type of recreational nocturnal excursions which previously resulted in plaintiff's tragic collision.

Accordingly, the Court held that the Secretary's denial of the restricted driving permit was contrary to the manifest weight of the evidence. Breiner, 76 Ill. Dec. 176 at 180.

Completion of Risk Education

As discussed at (1.16) above, the Secretary of State requires that persons whose licenses/privileges have been suspended or revoked as the result of an alcohol-related offense, attend a duly licensed driver risk education course (except for those classified as High Risk (Dependent) or (Non-Dependent) under DASA standards). In Sheldon v. Edgar, 131 Ill. App. 3d 489, 475 N.E. 2d 956 (Ill. App. 1st Dist. 1985), the Court held that the failure or refusal of an applicant to attend or participate in an alcohol-related driver risk education might constitute a lawful basis upon which to deny a request for the reinstatement of driving privileges.

Demonstration of Undue Hardship

The failure of a petitioner to demonstrate an undue hardship may constitute the sole basis to deny a request for issuance of a restricted driving permit, regardless of whether the petitioner has successfully demonstrated that he/she is not a risk to the public safety and welfare. In Clingenpeel v. Edgar, 133 Ill. App. 3d 507, 478 N.E. 2d 1172 (Ill. App. 4th Dist. 1985), the Court stated that where the plaintiff lived only one mile from his place of employment, that he was able to get to work since his wife drove him every morning and he was generally able to obtain a ride home in the evening and further, that he was not required to drive on the job during the day, the plaintiff had failed to demonstrate an undue hardship. Therefore, the Court held, the trial court's granting of a restricted driving permit to him was erroneous and reversed.

In Breiner v. Edgar, supra, the Court held that an employer's affidavit and applicant's testimony that he would lose his current employment without the ability to drive constituted an undue hardship and ordered the Secretary of State to grant him a restricted driving permit.

In Agans v. Edgar, 97 Ill. Dec. 270, 492 N.E. 2d 929 (Ill. App. 4th Dist. 1986), the Court affirmed the Secretary of State's denial of a restricted driving permit to an individual who was capable of walking to work. The Court also rejected the plaintiff's claim that he would be in a position to obtain a better paying position if he had a hardship license in the absence of evidence of potential jobs other than his claims made at the hearing.

Plaintiff offered no evidence of job applications for other positions, nor invitations to interview from potential employers, nor why they would require him to drive. (See Breiner v. Edgar, 130 Ill. App. 3d 1010, 86 Ill. Dec. 176, 474 N.E. 2d 1373 (1985)) (where the plaintiff brought to the hearing affidavits from his present employer requiring the plaintiff to have a driver's license or face termination).) Plaintiff demonstrates no undue hardship about his employment. Agans, 97 Ill. Dec. 270 at 276.
Required Period of Abstinence

As noted previously, 92 Ill. Administrative Code, ch. II, sec. 1001.440(e) provides, in part, that:
Petitioners classified as Level III Dependent or any other Petitioner with a recommendation of abstinence by a DASA licensed evaluator or treatment provider, should have a minimum of twelve (12) consecutive months of documented abstinence. Waivers are discretionary when considering an RDP but should be no less than six (6) months continuous abstinence. Documentation of abstinence must be received from at least three (3) independent sources. The Hearing Officer shall determine the weight to be accorded the documentation, taking into account the credibility of the source and the totality of the evidence adduced at the hearing.

In Agans v. Edgar, supra, the plaintiff was an alcoholic who had several prior unsuccessful attempts at abstinence and who had after that; entered and completed an alcohol rehabilitation program and was involved in aftercare group sessions. As of the time of the hearing before the Secretary of State, the plaintiff had been abstinent from alcohol for a period of two and one-half months. In affirming the State's decision to deny the plaintiff driving relief, the Court said:

We note plaintiff's heavy commitment to alcohol abuse support groups. We also acknowledge the optimistic opinion on the most recent alcohol assessment that plaintiff has a "strong handle on his recovery." We applaud and encourage the plaintiff in his endeavors to master his addiction to alcohol. We agree with plaintiff that he has taken every reasonable step to combat his addiction. We cannot say, however, that the passage of two and one-half months since plaintiff's commitment to these activities is a sufficient period to conclude that the plaintiff has no current alcohol problem. Agans, 97 Ill. Dec. 270 at 275.