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Negotiating the Illinois Secretary of State’s administrative rules pertaining to risk levels

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 ยง2060.101
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.

The purpose of the evaluation is to determine the degree of the offender’s drug or alcohol problem. The DASA rules and the evaluation to a large extent drive that determination. Those outcomes have been incorporated into the Secretary of State’s administrative rules.

The following are the minimum risk levels at which an offender must be placed:

In order to meet the minimal risk classification, the following factors must be present:

1. No prior “DUI disposition”, in this or any other state. A “DUI disposition” includes a conviction, court supervision, a DUI charge pled down to reckless driving, or an implied consent, per se or statutory summary suspension violation;
2. No abuse or dependency symptoms;
3. A BAC reading of less than .15. A test refusal disqualifies the offender from being minimal risk.

The intervention requirement for a minimal risk offender is a 10-hour Driver Risk Education (“DRE”) class.

The next classification level is moderate risk. The following offenders are eligible for this classification:

1. No prior “DUI disposition” in this or any other state.
2. No abuse or dependency symptoms;
3. A BAC of between .15 and less than .20 or a refusal of testing.

The intervention requirements for the moderate risk classification are DRE and 12 hours of “early intervention”.

Those classified as significant risk include:

1. A prior “DUI disposition” in this or any other state;
2. Or, regardless of the number of prior DUI dispositions, a BAC reading of .20 or greater;
3. Any abuse or dependency symptoms, even if the BAC reading is less than .20 and even if this is the first DUI disposition;
4. No more than two dependency symptoms.

The significant risk offender must complete DRE and 20 hours of alcohol treatment.

There are two categories of high- risk offenders. First, any body with three or more dependency symptoms, regardless of the prior driving record or BAC levels, will be classified as high risk, dependent.

That person will be required to complete 75 hours of outpatient treatment or 28 days of inpatient, provide evidence of 12 consecutive months of abstinence from all mood altering substances (drugs and alcohol) and demonstrate the existence of a support program, either Alcoholics Anonymous (“AA”) or a non traditional support program, such as church, friends and family, etc.

If a driver has 3 or more DUI dispositions within a period of 10 or fewer years and has fewer than 3 symptoms of dependency, the only acceptable classification is high risk, nondependent. This classification requires 75 hours of outpatient treatment and evidence of at least 12 months of non problematic alcohol consumption (abstinence is not required).

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