Combatting a Denial at a Secretary of State Hearing

Attorney Jennifer Wirth has focused her practice on Illinois driver’s reinstatement for over two decades. She has won many awards, including Avvo’s Client Choice and Expertise.com‘s Top Chicago DUI Attorney. Over 95 percent of her clients obtain driving privileges at their first hearing with her office.

When a person’s license is revoked for DUI in Illinois, they will require a Secretary of State hearing to request driving privileges again. The hearings have specific requirements for admission of evaluations, treatment documents, letters, and other relevant information. Further, a revoked driver will be asked many questions at the hearing relating to their alcohol use history, the facts of their DUI(s), potential lifestyle changes, and the lessons learned during their treatment.

There are plenty of people who hire our office after they have been denied at a prior hearing. Many of them went to a hearing without legal counsel, attempting to save on cost or misunderstanding the nature of the proceedings. Some believed the common myth that “everyone is denied at their first hearing” and just assumed the Secretary automatically rejects all first-time hearing applicants. This is simply not true – Most of our clients receive some form of driving relief at their first hearing with our office.

When a person is denied at a Secretary of State hearing, they are often confused as to what the State wants from them. A denial can be for various reasons, but there are some common themes in many Orders of Denial.  This article discusses common reasons for denial at a license reinstatement hearing.

Minimizing

The Secretary of State expects a person to give accurate amounts of alcohol consumption when reporting their use history, including the occasions of their DUI(s). If a person is unable to remember the exact amount of alcohol or drugs consumed on a DUI, the Secretary may ask them to provide an estimated amount.

Minimizing occurs when a person reports a substantially lower amount of consumption, which is inconsistent with chemical test results and/or their overall alcohol/drug offense history. For instance, if a person had a BAC of .18 on a DUI arrest, the Secretary is likely to deny a person who claims they drank only one beer on that occasion. The rationale is that the person would have had to consume more alcohol to reach the BAC score. By reporting substantially lower amounts, the applicant’s credibility is called into question.

Further, a person can be denied for minimizing when they report an incredible or unlikely alcohol use history. If a person has multiple DUIs (especially with higher BAC scores), the Secretary is unlikely to believe that they barely drank alcohol, except on their DUI arrests. For example, if a person has pled guilty to three DUI arrests, the Secretary is unlikely to find it credible if an applicant states they never drank more than one to two beers, once a month, in the period surrounding their DUI arrest(s).

Finally, it is important to avoid guessing amounts of consumption or overstating consumption. If a person weighs 200 pounds and had a BAC of .20 on a DUI after drinking over a four-hour period, they would have likely consumed somewhere around 16-17 beers according to a commonly used BAC calculator at hearings (assuming chemical testing was administered in a reasonable time after arrest). If a person guesses at amounts and claims to have 24 beers, their testimony will be inconsistent with the BAC score. Inconsistencies between testimony and the evaluation or facts of a DUI can also lead to denial of driving relief.

An applicant should review their arrest reports to help refresh recollection before providing a “Chronological Use History” for alcohol and/or drug consumption at an evaluation or hearing. The Secretary is interested in obtaining an accurate history of past use to ensure the problem has been properly diagnosed and treated. When an applicant gives lower amounts, the Secretary may consider minimization to be a sign that the person is not being credible, does not take responsibility for their past conduct, or did not learn from alcohol/drug treatment.

A license reinstatement attorney should be well-versed in avoiding and/or addressing issues of minimization. It is fundamental that an attorney review their client’s alcohol and drug use with them at the beginning of a case. If a chronological use history is not reflective of their DUI history or classification, the Secretary of State is likely to deny. A qualified attorney should screen for minimization issues long before a hearing takes place.

Conflicting Symptoms

Another major reason for denial exists when the testimony relating to the DSM-V symptoms for alcohol use disorder (or any use disorder) does not match the person’s classification or evaluation. For instance, if a High Risk (Dependent) applicant states at their hearing that they only experienced an increase in tolerance and hangovers, the Secretary will question whether the person has accepted their alcohol dependency. The rationale is that an alcohol dependent person would have needed to have more symptoms to warrant a diagnosis of dependency during their evaluation and/or treatment. By reporting less symptoms in testimony, the Secretary may question if the person has been diagnosed properly, as well as whether they are in denial about being dependent on alcohol and/or drugs.

Further, a person may be denied when they report a sufficient number of symptoms to match their classification, but their evaluation reports differing symptoms. In this scenario, the Secretary may look at the inconsistent symptoms and determine the extent of the problem is unclear, vague or ask that the inconsistency be addressed at a new hearing by an evaluator. The precipitating reason for denial is that the Secretary cannot be clear whether a person was accurately assessed if they testify to symptoms are inconsistent with their classification or evaluation.

Prior to any hearing, a license reinstatement attorney should review all symptoms with a client and ensure they are accurately reflected in the evaluation. The attorney should also ensure that the client understands each symptom so that they can give clear testimony relating to each symptom at their hearing. With effective preparation, a license revocation attorney can help a client avoid guessing at symptoms or reporting inconsistent symptoms. By reporting accurate and consistent symptoms at a hearing, the Secretary is less likely to pursue this reason for denial.

Questioning the Effectiveness of Treatment

The Secretary of State is also very critical when considering whether treatment was effective. The scrutiny of a person’s treatment is not meant to insult the treatment provider, undermine an applicant’s efforts, or to search for a reason to deny that is unwarranted. Simply put, the Secretary is focuses on treatment to ensure that an applicant has resolved their alcohol/drug problem and can be deemed low risk for a future DUI offense.

There are many factors that the Secretary considers when gauging the effectiveness of treatment. If an applicant minimizes their alcohol or drug use while testifying, the Secretary may view the minimization as a sign that treatment was not effective. Minimization can be taken as an indicator that the person didn’t honestly disclose their use to their treatment provider, or that they haven’t taken an honest look at their past use to learn techniques that may prevent future substance use problems.

During a hearing, the Secretary will want detailed testimony on what a person learned in treatment, consistent with their classification. For example, if a person sits down at a hearing and submits proof that they attended seventy-five (75) hours of alcohol dependency treatment, the Secretary will hope they learned enough to elaborate on that experience. If the applicant testifies that they learned “alcohol can cause health problems,” but cannot identify any health issues or other lessons from treatment, the Secretary may question if the person actively participated in the program or gained any knowledge.

Further, the Secretary has its’ own standards for treatment documents, which are located in 92 Ill.Adm.Code 1001.440. If the evaluation and/or treatment documents do not meet Secretary of State standards, the Secretary can reject the documents and deny an applicant. This can be frustrating to applicants who followed all rules of their previous treatment and were discharged satisfactorily. However, the Secretary’s rules are designed to give them an opportunity to view the quality of the treatment program, including the topics covered in the program. Among other items, the documents should contain sufficient information to show that the root problem that led to the DUI(s) has been effectively addressed in a treatment setting.

An experienced driver’s license reinstatement attorney should be familiar with the document requirements of the Secretary of State and review the treatment documents well in advance of a hearing to screen for any potential issues or inconsistencies. Treatment providers can make honest mistakes like anyone else. If a person is classified as a social drinker (aka abusive drinker), it will likely concern the State if they recommend that person maintain sobriety or continue involvement in a sobriety-based support program, such as Alcoholics Anonymous. These would be standard recommendations for an alcohol-dependent person, but not a social drinker. A provider may have accidentally checked the wrong box. Attorney review can determine whether the documents have errors and whether the content of the documents is consistent with the overall classification.

Conclusion

There are many reasons that the Secretary of State can deny a person at a hearing for driver’s license reinstatement. Our list covers the common reasons, but it is in no way dispositive. When a person has been denied at a hearing, it is always advisable to consult with a driver’s license attorney to determine the best method of combatting a denial at a prior Secretary of State hearing. A case gets more complicated (and often, more expensive) when a person has several denials before hiring an attorney. The best defense against a denial is preparing for the Secretary’s concerns before a hearing takes place.

Our office meets with clients several times before a hearing, while also reviewing all documents to be submitted at a hearing. The goal is to ensure that the client is prepared to answer the questions with accurate information and that their documents meet the requirements of the Secretary. For a free consultation, please do not hesitate to contact our office at jennifer@wirthlaw.org or call us at (312) 761-8290.

The information in this article does not constitute legal advice. Nothing in this article, or on our overall website, forms an attorney-client relationship. Our office signs written engagement agreements to memorialize representation with a client.

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