Current through Register Vol. 48, No. 38, September 20, 2024
a)
Open to Public. All hearings conducted in any proceeding shall be open to the
public.
b) Out-of-state
Petitioners. An out-of-state petitioner is defined as a petitioner who never
resided in Illinois, or who has permanently relocated outside of the State of
Illinois. An out-of-state petitioner may choose to submit an "out-of-state
application" in petitioning for driving relief, in lieu of appearing at an
in-person hearing. These petitioners shall be deemed to have waived the right
to appear at an in-person hearing. However, no person subject to a life-time
prohibition from making an application for a driver's license under Section
6-208(b)4 of the Code may submit an out-of-state application and must appear at
a formal in-person hearing, regardless of the nature of the current loss of
driving privileges, unless the hearing officer determines that there are
material extenuating circumstances that prohibit the petitioner from attending
an in-person hearing. Material extenuating circumstances do not include
inconvenience or monetary considerations. In-person hearings require the
petitioner to be physically present and do not include telephonic hearings but
do include real-time audio and visual internet hearings.
1) Out-of-state petitioners must provide
evidence of their residency, such as, but not limited to, voter registration,
income tax returns, apartment rental leases, mortgage contracts, employment
verification, utility and/or telephone bills, etc. The Department reserves the
discretion to reject out-of-state petitions that fail to provide this evidence
or establish residency. The Department also reserves the discretion to reject
out-of-state petitions if there is evidence that the petitioner is regularly
present in the State of Illinois, for such reasons as, but not limited to,
through work, school or family contacts and is capable of attending a hearing
in person in a timely manner. An out-of-state petitioner who chooses to appear
in person must either testify to, or provide documentation of, the location of
the petitioner's current residency. An out-of-state petitioner who has not
completed the requirements for reinstatement as a BAIID Multiple Offender (BMO)
permittee or is currently a Lifetime permittee (see Section
1001.410) in Illinois
must also submit a valid state-issued identification card or driver's license
prior to being granted reinstatement.
2) The out-of-state petitioner must submit,
at a minimum, all documentation and information required by Subpart D if they
appear at an in-person hearing. The uniform report alcohol and drug evaluation
at an in-person hearing must have been conducted in-person or virtually, by an
Illinois provider licensed by the Illinois Department of Human Services,
Division of Substance Use Prevention and Recovery (DSUPR) to conduct these
evaluations. All other documentation, including treatment and intervention
documentation, required by Subpart D can be completed in person by an
out-of-state licensed provider on forms downloaded from the Department of
Administrative Hearings web page and must comply with this Part and the
regulations set by DSUPR. Remedial education may be performed in-person or
virtually but must comply with this Part and the regulations set by DSUPR.
However, no documents in Subpart D are required to be submitted if the
petitioner submits a written out-of-state application for driving relief, as
the out-of-state application for driving relief encompasses all documentation
required by Subpart D.
3) An
informal hearing request is made when the Department accepts a written
out-of-state application. The petitioner's application will be assigned to a
hearing officer within 10 calendar days after receipt of a complete
application. The application will be reviewed by the hearing officer and a
letter decision will be issued no more than 180 days after it is assigned to a
hearing officer.
c)
Formal Hearings Generally; Parties to a Hearing; Disqualification of Hearing
Officer. Every hearing shall be presided over by a hearing officer duly
appointed by the Secretary. The hearing officer shall have authority to conduct
the hearing, to rule on all motions, to administer oaths, to subpoena witnesses
or documents at the request of any party, to examine witnesses, and to rule
upon the admissibility of testimony and evidence. The Secretary may also
appoint a representative to appear and participate in the hearing on the
Secretary's behalf. Prior to the taking of evidence, the petitioner/respondent
may request disqualification of the hearing officer by making a motion for
disqualification on the record, stating the specific grounds upon which it is
alleged that a fair and impartial hearing cannot be afforded the
petitioner/respondent by the hearing officer. The hearing officer will rule
upon the motion. If the motion is denied, the hearing will proceed, or the
petitioner may withdraw from the hearing. If the motion is granted, the case
shall be transferred to another hearing officer for a hearing on the same day
if possible. If it is not possible to schedule a hearing on the same day, a new
hearing date shall be scheduled and another hearing officer shall be assigned
by the Secretary.
d) Depositions
and Interrogatories
1) Upon order of the
hearing officer, for good cause shown, and upon reasonable notice to other
parties, any party, including the Department, may take, at that party's
expense, the testimony of any party or person by deposition upon oral
examination or written questions for the purpose of discovery or for use as
evidence in the action in a contested case (for example, when the witness is
not available due to distance, time, cost to the party using the testimony,
sickness, infirmity, imprisonment, the witness being out of state or similar
factors). The notice, order or stipulation to take a deposition shall specify
whether the deposition is to be a discovery deposition or an evidence
deposition. In the absence of specification, a deposition is a discovery
deposition only. If both discovery and evidence depositions are desired of the
same witness, they shall be taken separately, unless the parties stipulate
otherwise or the hearing officer orders otherwise upon notice and motion. The
deposition shall be taken in the manner provided by law for discovery and
evidence depositions in civil actions in the Circuit Courts of
Illinois.
2) Any party may direct
written interrogatories to any other party. Interrogatories must be restricted
to the subject matter of the case, to avoid undue detail, and to avoid the
imposition of any unnecessary burden or expense on the answering party. Sworn
answers or objections to interrogatories directed to the Department and/or
Secretary of State may be made by a designated agent, including the
Department's counsel, who shall furnish such information as is available.
Written interrogatories shall be served on the opposing party no later than 15
business days before the hearing. Objection to answers or refusals to answer
shall be heard on motion at the hearing before the hearing officer, who shall
rule on the objection or refusal. Answers shall be sworn. If an answer to an
interrogatory may be obtained from documents in the possession or control of
the party on whom the interrogatories were served, it shall be a sufficient
answer to specify the documents and make them available to the inquiring party
to inspect and copy at the asking party's expense. The requirements of this
subsection (d)(2) do not apply to objections or refusals to answer
interrogatories.
e)
Rules of Evidence
1) The technical rules of
evidence shall not apply. Any relevant evidence may be admitted if it is the
sort of evidence relied upon by reasonably prudent people in the conduct of
their affairs. The existence of any common law or statutory exclusionary rule
that might make improper the admission of the evidence over objections in civil
or criminal actions shall not be a bar to the admissibility of otherwise
relevant evidence. The rules of privilege shall be followed to the same extent
that they are now or hereafter may be recognized in civil actions. Irrelevant,
immaterial or unduly repetitious evidence may be excluded upon objection.
Objections to evidentiary offers may be made and shall be noted in the record,
and ruled upon by the hearing officer. Any party may make an offer of proof
following an adverse evidentiary ruling. Subject to these requirements, when a
hearing will be expedited and the interests of the parties will not be
prejudiced, any part of the evidence may be received in written form. Subject
to the evidentiary requirements of this subsection, a party may conduct
cross-examination required for a full and fair disclosure of the
facts.
2) In regard to implied
consent hearings over which the Secretary of State has jurisdiction, the
hearing may be conducted upon a review of the official police reports. However,
the parties may subpoena the arresting officer and any other officer who was
involved in the petitioner's arrest or processing after arrest, as well as any
other person whose testimony may be probative to the issues at the hearing. The
failure of an officer to answer the subpoena shall be considered grounds for a
continuance if, in the hearing officer's discretion, the continuance is
appropriate. Furthermore, the failure of the arresting officer to answer a
subpoena shall not be considered grounds for the rescission of an implied
consent suspension. Rather, the hearing shall proceed on the basis of the other
evidence available and the hearing officer will assign this evidence whatever
probative value the hearing officer deems appropriate.
f) List of Witnesses; Bill of Particulars.
Upon written request, made at least 10 business days prior to the hearing, a
party shall furnish to other parties a list of the names and addresses of
prospective witnesses, or furnish written answers to a written demand for a
bill of particulars.
g) Inspection
of Documents; Interview of Parties. Any party or that party's representative
shall have a right, upon the filing of a written motion with proper proof of
service, to inspect any relevant document in the possession of or under the
control of any other party prior to the formal hearing. The inspection of
documents shall occur at the location the formal hearing is scheduled. Any
party may file a written motion seeking to interview parties or persons having
knowledge of relevant facts, subject to any statutory or constitutional
privileges. Upon order of the hearing officer, for good cause shown, and upon
reasonable notice to other parties, any party, including the Department, may
interview, at that party's expense, parties or persons having knowledge of
relevant facts. Interviews of persons and inspection of documents shall be at
times and places reasonable for the persons and for the custodian of the
document.
h) Admissions. A party
may serve on any other party a written request for the admission by the latter
of the truth of any specified relevant fact set forth in the request or for the
admission of genuineness of any relevant documents described in the request.
Copies of the documents shall be served with the request unless copies have
already been furnished.
i) Right to
Call Witnesses, Cross-Examine, Subpoena Documents and Introduce Exhibits. Each
party shall have the right to request the subpoena of, and to call and to
examine, witnesses, to introduce exhibits, and to cross-examine witnesses on
any matter relevant to the issues, even though that matter was not covered in
the direct examination. Applications to the hearing officer assigned to the
case for subpoenas duces tecum shall specify the books, papers and documents
desired to be produced.
j)
Pre-hearing Conference. At the request of any party or upon the hearing
officer's own motion, the hearing officer may call a pre-hearing conference. At
the conference, the parties or their representatives shall appear as the
hearing officer directs. Matters that may be considered at a pre-hearing
conference include, but are not limited to:
1)
The simplification of the issues;
2) Amendments to the grounds for
action;
3) The possibility of
obtaining admissions and stipulations of fact and of documents that will avoid
unnecessary proof;
4) The
limitation of the number of expert witnesses; and
5) Any other matters that may aid in the
disposition of the contested case.
k) Order from Pre-hearing Conference. Upon
the conclusion of a pre-hearing conference, the hearing officer shall enter an
order that recites any action taken, any agreements made by the parties as to
any of the matters considered, and the issue to be heard.
l) Oath. Testimony shall be taken only on
oath or affirmation.
m)
Stipulations. Parties may agree by stipulation upon any facts involved in the
hearing. The facts stipulated shall be considered as evidence in the
hearing.
n) Official Notice.
Official notice may be taken of past hearings and of any matter of which the
Circuit Courts of Illinois may take judicial notice. In addition, official
notice may be taken of generally recognized technical or scientific facts
within the Department's specialized knowledge. Parties shall be notified either
before or during the hearing, or by reference in preliminary reports or
otherwise, of the material noticed, including staff memoranda and data, and
they shall be afforded an opportunity to contest the material so noticed. The
Department's and the hearing officer's experience, technical competence and
specialized knowledge may be utilized in the evaluation of the
evidence.
o) Rights of Parties.
Each party shall have the right to rebut the evidence against it; to appear in
person; and to be represented by counsel. If a party does not testify on its
own behalf, the party may be called by the Secretary of State's representative
and examined as if under cross-examination.
p) Opening and Closing Statements. Upon the
opening of the hearing, the hearing officer shall allow the parties to make
opening statements. Opening statements may not be made at any other time,
except at the discretion of the hearing officer. Upon the close of the hearing,
each party may make a closing statement orally and/or by written brief at the
discretion of the hearing officer, incorporating arguments of fact and law. A
written brief may be required when the facts and issues are deemed complicated
by the hearing officer and there is a need for the parties to plead their cases
in writing for the record.
q)
Exhibits. All exhibits for any party shall be clearly marked for identification
and as admitted into evidence by the hearing officer.
r) Cross-examination of Witnesses. In the
hearing of any case, any party or that party's agent may be called, as an
adverse witness and examined as if under cross-examination, by any party. The
adverse party calling for the examination is not bound by the testimony of the
adverse witness, but may rebut the testimony given and may impeach the witness
by proof of prior inconsistent statements. If the hearing officer determines
that a witness is hostile or unwilling, the witness may be examined by the
party calling the witness as if under cross-examination. The party calling an
occurrence witness may, upon showing that the party called the witness in good
faith but is surprised by the testimony, impeach the witness by proof of prior
inconsistent statements.
s) Burden
of Proof; General and Exception. The general burden of proof is upon the
petitioner for any relief in a hearing. The standard of proof is the
preponderance of the evidence, except as provided for in Subpart D, where the
burden of proof is upon the petitioner to prove each issue or element of proof
by clear and convincing evidence.
t) Interpreters; Hearing Impaired. The
Secretary will provide, upon prior written request, an interpreter for hearing
impaired petitioners/respondents who wish to testify; providing a language
interpreter, however, is the responsibility of the
petitioner/respondent.
u) Report of
Proceedings; Obtaining a Copy of Record
1) The
Department shall, at its expense, have present at each formal hearing an
electronic or digital recording device or a qualified court reporter, for the
purpose of making a permanent and complete report of the proceedings,
including: evidence admitted or tendered and not admitted, testimony, offer of
proof, objections, remarks of the hearing officer and of the parties and/or
their representatives, all rulings of the hearing officer.
2) Upon written request and at the party's
own expense, any party may obtain a copy of the report of proceedings from the
court reporter or copied from the electronic device by the Department. The
party must pay $25 to the Secretary of State, in advance, to cover the cost of
making an electronic or digital copy and mailing.
v) Motions to Continue and Withdraw; Leave to
Submit Original Documents
1) Motions to
Continue by Petitioner or Respondent; Grounds. Hearings before the Department
of Administrative Hearings will be continued only pursuant to a motion that
complies with the requirements of Section
1001.80 and is: filed
prior to or on the date of the hearing, made over the telephone less than 15
days prior to or on the date of the hearing, or made in person on the day of
the hearing. The movant shall set forth the grounds for the motion, which are
limited to unforeseen, unavoidable or uncontrollable circumstances, such as an
Act of God, the recent discovery of new evidence, the sudden illness or death
of the movant, an immediate family member, or the movant's legal counsel, or if
the movant is able to demonstrate some other real and compelling need for
additional time. A Motion to Continue may be supported by evidence that tends
to prove the grounds alleged, including sworn testimony taken at a motion
hearing on the day of the hearing. The inability to obtain transportation to
the hearing site or a party's failure or inability to obtain the documentation
required to fulfill the minimum requirements to be issued driving relief may be
circumstances that will justify continuing a hearing upon showing of good cause
by the petitioner.
2) Continued to
a Date Certain. A formal hearing shall not be continued "generally". A
continuance, if granted, shall state a date certain upon which the hearing
shall reconvene. If the petitioner is not prepared to go forward after the
first continuance, a request to withdraw should be submitted or an Order of
Default shall be entered.
A) Written Motions
to Continue filed at least 15 days prior to the date of the hearing specified
in the Notice of Hearing or notice of a continued hearing date will be given
priority in rescheduling over those motions filed or made less than 15 days
prior to the date of the hearing or made on the day of the hearing. The
Department will rule upon Motions to Continue filed at least 15 days prior to
the date of the hearing and, when possible, notify the movant of its ruling
prior to the date of the hearing. If the motion is denied, the movant must
appear at and proceed with the hearing or withdraw from the hearing or an Order
of Default shall be entered.
B)
Motions to Continue made by telephone less than 15 days prior to the date of
the hearing, specified in the Notice of Hearing or notice of a continued
hearing date must also be filed in writing and received or postmarked no more
than 5 days after the date of the hearing to be considered. A Motion to
Continue made in writing less than 15 days prior to the date of the hearing
specified in the Notice of Hearing or notice of a continued hearing date must
be received and postmarked no more than 5 days after the date of the hearing.
The Department cannot assure the movant that it will rule upon these motions
prior to the date of the hearing.
C) A Motion to Continue made or filed by a
petitioner waives the statutory requirement of Sections 2-118 and 3-402.B(7)(a)
of the Code that the hearing commence within 90 days from the date of the
written request.
D) It is the
responsibility of the movant to inform the Department, in the Motion to
Continue or during the telephone conversation, what course of action the movant
wishes to take if the motion is denied (either to appear and proceed with the
hearing, withdraw or default). In all cases, it is also the responsibility of a
movant who has not been notified of the Department's ruling to contact the
Department on or before the day of the hearing to determine whether the hearing
officer has ruled on the motion. A movant's failure to appear after a Motion to
Continue is denied will result in the entry of an Order of Default.
3) Motions Made by the Department.
The Department may also make or file a Motion to Continue for unforeseen,
unavoidable or uncontrollable circumstances, such as an Act of God, the recent
discovery of new evidence, the sudden illness or death of the hearing officer,
the attorney representing the Secretary of State, a witness, or a member of the
immediate family of one of these entities, or if the Department is able to
demonstrate some other real and compelling need for additional time.
4) Motions to Withdraw. Except as provided in
this subsection (v)(4) and in Section
1001.70,
a petitioner may withdraw from a hearing for any reason. A Motion to Withdraw
made in person or by telephone on or before the day of the hearing must be
followed up with a written motion that is received no more than 10 days after
the date of the hearing. A Motion to Withdraw made in writing must be received
or postmarked no more than 10 days after the date of the hearing. Failure to do
so will result in an Order of Default. Once a petitioner is placed under oath,
a request to withdraw from a hearing that, in the hearing officer's judgment,
is based upon surprise evidence presented or adverse evidence, shall not be
granted. Upon withdrawal, the requested relief will not be considered and the
petition dismissed. Should the petitioner request another hearing, it must be
done in writing and it will be treated as any other request for hearing. (See
Section 1001.70.)
5) Motions for
Leave to Submit Original Document. As provided in Section
1001.90(b)(7)
and (8), the petitioner may request leave to
submit original documents if the petitioner proceeds with the hearing, offering
copies of documents when originals are required. The hearing shall be completed
and the petitioner shall be granted leave to submit the original documents as
provided in Section
1001.90(b)(7)
and (8).
6) Attorney's Appearance on File. A Motion to
Continue or Withdraw made by any attorney on behalf of a petitioner/respondent
will not be considered unless the attorney has filed a written notice of
appearance as provided in Section
1001.40.
