The Illinois Vehicle Code (625 ILCS Chapter 5) governs the rules and obligations of all motorists operating a motor vehicle on the public roadways of the State of Illinois, including the DUI laws. The Illinois General Assembly, elected by the citizens of this state, writes these laws, which are known as statutes.
However, because the statutes cannot be written to cover every conceivable situation, the General Assembly has vested the Illinois Secretary of State with the “powers and duties and jurisdiction” of administering the Illinois Vehicle Code. 625 ILCS 5/2-101 In this capacity, the Secretary of State, although an elected official, functions as an administrative agency. Clingenpeel v. Edgar, 133 Ill.App.3d 507, 487 N.E.2d 1172 (4th Dist. 1985) Therefore, he is subject to the Administrative Procedure Act. (“APA”) (5 ILCS 100/1-1 et. seq.).
The APA sets out the requirement that all rules be promulgated. The APA requires that: “All rules of agencies shall be adopted in accordance with this Article.” (5 ILCS 100/5-5).
Section 5-10 of the APA requires all agencies to adopt rules of practice for formal hearings. It requires agencies to make available for public inspection all rules adopted by the agency in the discharge of its functions.
When a you are charged in Illinois with Driving Under the Influence (DUI), there is a criminal case and a driver’s license case. How the driver’s license case unfolds depends upon a number of factors.
One of those factors is whether or not you have had a DUI in the previous 5 years. If you have not, you are what is known as a “first offender”, even if this is not your first DUI. If you have had a DUI in the previous 5 years, you are a non first offender.
The second factor in the equation is whether or not you submit to testing to determine your blood alcohol level. If you are a first offender and submit to testing and register .08 or greater, your driver’s license will be suspended for 6 months. If as a first offender you decide not to consent to testing, your license will be suspended for 12 months.
If you are a non first offender and submit to testing with a result of .08 or more, you will be subject to a driver’s license suspension for 12 months. If you do not agree to testing, your license will be suspended for 3 years. 625 ILCS 5/6-208.1
Suspensions are based upon taking the test and registering .08 or higher, or refusing the test. 625 ILCS 5/6-208.1 Revocations result from a DUI conviction. 625 ILCS 5/6-205
Non first offenders may not drive during the period of their one or 3 year suspension, even for work. First offenders, subject to a very few exceptions, whether they take or decline to submit to blood alcohol testing, are eligible to request a Monitoring Device Driving Permit (MDDP). While this permit will allow you to drive during your suspension, a conviction for the DUI arrest will invalidate an MDDP.
In general, the MDDP requires installation of an ignition interlock device on any motor vehicle that you operate. However, there is an exception for work vehicles if your employer will not allow its installation.
The Secretary of State is proposing a rule that would create “an exception to the exception”. This rule, 92 Ill. Admin. Code 1001.444, would require the installation of the device on an employer-owned vehicle if you were allowed to take the vehicle home.