Current through Register Vol. 48, No. 38, September 20, 2024
a) Upon
the completion of the presentation of evidence, if the petitioner is unable to
present a preponderance of evidence rebutting the preliminary finding of the
Secretary or otherwise exempting the petitioner from the purview of the
statute, the hearing officer shall direct that an Order of Suspension be
entered. However, if the petitioner rebuts by a preponderance of the evidence
the preliminary finding of the Secretary or otherwise establishes that the
petitioner is exempt from the purview of the statute, the hearing officer shall
direct that an Order of Exoneration be entered and further direct that the
petitioner be dismissed.
b) A copy
of the Order entered pursuant to a hearing shall be served, as soon as
practicable after entry of said Order, upon the petitioner in the same manner
as provided in Section
1001.220(d)
for the service of the Notice of Hearings.
c) Decision on Petitioner's Refusal or
Non-Appearance
1) If the petitioner fails to
appear at the hearing, the hearing officer shall go on the record, state the
petitioner failed to appear and is held to be in default. However, an attorney,
who has filed an appearance on behalf of the petitioner, may appear and present
motions, and the provisions at Section
1001.220(g)
shall be followed. If the attorney, in such
a case, requests a continuance which is denied, the matter shall proceed and an
appropriate order entered.
2) If a
petitioner appears for a hearing and refuses to testify on the grounds that any
answer of his/hers may tend to incriminate him/her, then the hearing officer
shall take an adverse inference from the refusal to testify and shall consider
the adverse inference in addition to other evidence in determining whether
petitioner should be suspended or exonerated. If the petitioner appears and
refuses to testify without asserting the right against self-incrimination, the
hearing officer shall enter any appropriate order as is required by the
evidence and this Part.
d) Except for evidence depositions admissible
under the law of the State of Illinois, oral testimony shall be given greater
weight by the hearing officer than a written statement that is unsubstantiated
by oral testimony or other documentary evidence, on the same issue. In
determining the weight to be accorded evidence, the hearing officer shall take
into account the demeanor and/or credibility of the proponent of the evidence.
The certification from the Illinois Department of Transportation regarding the
dollar amount of damages shall be given greater weight than oral testimony that
is unsubstantiated by written corroboration, unless the witness is qualified as
an expert in the field.
e)
Continuances and Withdrawals
1) Hearings
before the Department of Administrative Hearings will be continued only
pursuant to a motion: 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 or a member of his/her immediate family,
or of 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 petitioner's failure or
inability to submit proof of compliance or otherwise fulfill the minimum
requirements of the Illinois Safety Responsibility Law are not circumstances
that will justify continuing a hearing.
2) A hearing shall not be continued
"generally". A continuance, if granted, shall state a date certain upon which
time and date the hearing shall reconvene. If a petitioner is not prepared to
go forward after the first continuance, a request to withdraw should be
submitted.
A) 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
re-scheduling 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, then the movant must appear at and
proceed with the hearing or withdraw from the hearing.
B) Motions to Continue made in person on the
day of the hearing or 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. 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 or postmarked no
more than 5 days after the date of the hearing. The Department cannot assure
the movant that it will rule upon such motions prior to the date of the
hearing.
C) A Motion to Continue
made or filed by a petitioner waives the statutory requirement of § 2-118
of the Code that his/her hearing commence within 90 days from the date of
his/her written request. Except to the extent provided in subsection (e)(3),
these proceedings are considered joint and non-severable and, therefore, a
Motion to Continue made by and granted to any petitioner is binding on all
parties.
D) 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 his/her motion has been ruled upon. A movant's
failure to appear after a Motion to Continue is denied will result in the entry
of an Order of Default.
3) The Department may also make or file a
Motion to Continue for unforeseen, unavoidable or uncontrollable circumstances,
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 the same, or if the
Department is able to demonstrate some other real and compelling need for
additional time.
4) A petitioner
may withdraw from a hearing for any reason by making a motion on the day of the
hearing or by filing a Motion to Withdraw at any time prior to the date and
scheduled time of the hearing. Failure to do so will result in an Order of
Default, unless other evidence taken pursuant to this subsection or §
1001.260 warrants the
exoneration of the defaulted party. If an interested party or another
petitioner appears for a hearing prepared to proceed, his/her testimony or
documentary evidence will be taken and made part of the record, which will be
admissible at any rehearing conducted pursuant to § 1001.260. Should the
petitioner request another hearing, it must be done in writing and it will be
treated as any other request for hearing. (See §
1001.220(a).)
5) A Motion to Continue or Withdraw made by
any attorney on behalf of a petitioner will not be considered unless the
attorney filed a written notice of appearance as provided in Section
1001.40.
