Vol. 80, No. 3, March 2007
by Donald Ramsell & Andrew Mishlove
isconsin courts handle more than 30,000 drunken driving cases every year. In many of these cases the defendants are out-of-state residents who have traveled to Wisconsin for business or pleasure. Lawyers in Wisconsin often are confronted with the problems faced by Illinois drivers who have been arrested in Wisconsin for operating a motor vehicle while under the influence of an intoxicant (OWI) or operating a motor vehicle with a prohibited alcohol concentration (PAC). Although lawyers licensed only in Wisconsin normally cannot practice before Illinois courts or the Illinois Secretary of State (the Illinois agency that handles driver's license matters), it is, nevertheless, critical that Wisconsin lawyers know why the Illinois driver's case often needs to be handled far differently than that of the Wisconsin driver. This is especially true for a first-offense charge.
This article provides Wisconsin lawyers with some ready answers to the questions posed by cases involving Illinois drivers and suggests some strategies for controlling the damage.
In some cases, the best defense strategy is to try to obtain an acquittal. That option may need to be explored more carefully for an Illinois driver because of the more serious negative consequences faced by an Illinois driver if convicted.
Illinois Drivers Face Severe Consequences
Illinois drivers face more severe consequences for a Wisconsin drunken driving conviction than do Wisconsin drivers. The maximum driver's license revocation for a Wisconsin driver convicted of first-offense OWI or PAC normally is nine months, usually with immediate eligibility for an occupational permit. However, regardless of a Wisconsin court's order, if an Illinois driver with no prior arrests is convicted of a first Wisconsin OWI, the Illinois driver will suffer an indeterminate revocation of Illinois driving privileges for a minimum of one year and a maximum of lifetime. An occupational permit, called a restricted driving permit (RDP) in Illinois, may be difficult to obtain.1 In addition, the refusal to submit to chemical testing (breath, blood, and urine) after an arrest for OWI or PAC will result in the suspension of an Illinois driver's license for six months to one year. Again, an RDP may be difficult to obtain.
Andrew Mishlove, U.W. 1981, an expert on drunken driving defense, is presently Wisconsin’s only board certified specialist in this field, and has been an instructor at the National College for DUI Defense. He may be contacted at www.Excellentlawyer.com.
Donald Ramsell, DePaul 1984, is an expert on drunken driving defense and is presently Illinois’ only board certified specialist in the field. He may be reached at www.dialdui.com.
Thus, in a first-offense case, the OWI revocation in Illinois will be worse than the driver would face if he or she had a Wisconsin license, and worse than the Illinois driver would face if the offense occurred in Illinois.
Differences Between the Wisconsin and Illinois Systems
The differences between the Wisconsin and Illinois systems often lead to inequitable penalties for the Illinois driver. Wis. Stat. section 967.055 limits plea bargaining in OWI and PAC cases. Illinois has no analogous statute. Unlike Wisconsin, where the reduction of an OWI or PAC charge is a rare occurrence, it is common in Illinois for a drunken driving charge to be reduced to reckless driving.
Wisconsin lawyers should become familiar with the Illinois system of "court supervision." This is a formal, statutory deferred prosecution program available for those charged with first-offense drunken driving in Illinois. Although a disposition of court-supervision does not result in a conviction under Illinois law, it does count as a prior offense under Wisconsin law.2 An Illinois driver charged with first-offense OWI in Wisconsin is not eligible for Illinois court supervision.3
Thus, in Illinois, a driver's first drunken driving charge generally does not result in a judgment of conviction. A conviction in Illinois usually only occurs for a second or third drunken driving charge. A conviction, however, is reasonably probable for a driver arrested for first-offense drunken driving in Wisconsin.
Because of this anomaly, the driver's license revocation faced by an Illinois driver convicted of a Wisconsin first-offense OWI is the same as the Illinois driver would face for a second or subsequent arrest in Illinois. A first-offense conviction in Wisconsin causes the Illinois driver to suffer a loss of Illinois driving privileges, which usually is reserved to repeat offenders.
Illinois Law Determines Revocation Terms
The effective date and length of an Illinois revocation for a Wisconsin OWI are not based on Wisconsin law. The Illinois Secretary of State will revoke the driver's license of an Illinois driver on receipt of a report of any conviction for drunken driving, OWI, driving under the influence of an intoxicant (DUI), or a similar offense for which the cause of action is the same or substantially similar to the offense of DUI4 as defined in the Illinois Motor Vehicle Code.5 Wisconsin has a statutory scheme that provides for a lower penalty for driving with an alcohol level that is from 0.08 to 0.099 but below 0.10.6 A Wisconsin conviction for PAC when the driver's alcohol level is below 0.10 will still result in a revocation in Illinois, because Illinois does not have a similar graduated scheme. Therefore, to avoid a license revocation, any amendment or reduction of the drunken driving charge must be to an offense that will be recognized separately (that is, reckless driving) under the Illinois Motor Vehicle Code.
In Illinois, license revocations are for a minimum of one year if the driver has never been previously convicted of DUI.7 Two DUI convictions within 20 years will result in a minimum revocation of five years,8 and three convictions within 20 years will result in a minimum revocation of 10 years.9 A fourth conviction for DUI renders the driver permanently ineligible from applying for an unrestricted license in Illinois.10 It is the policy of the Illinois Secretary of State's office not to fully reinstate an otherwise eligible driver until the driver has first been issued an RDP and driven without incident for at least nine months while using the RDP.
Illinois' Work Permit Program is Discretionary
Illinois, like all states, has a program that allows certain persons convicted of driving offenses to drive for a few limited purposes, such as work. In Wisconsin, the relevant permit is called an occupational permit, under Wis. Stat. section 343.10. In Illinois, it is called an RDP. Unlike Wisconsin's permit program, the Illinois RDP program is discretionary, requiring an adjudicative process. Thus, the Illinois driver facing revocation should be advised to obtain the services of an Illinois attorney. The Illinois attorney should be involved in the process at an early stage because, although preparing for the Illinois process often is arduous, the process may be completed while the Wisconsin case is pending, thus minimizing the Illinois revocation period.
Although the Wisconsin lawyer might not be involved in the Illinois procedures, the Wisconsin lawyer should maintain good communication with the Illinois lawyer and have a basic understanding of the Illinois process.
In Illinois, an RDP may be issued for: 1) driving to and from work and driving that is within the petitioner's scope of employment-related duties; 2) transporting the petitioner or a family member for necessary medical care; 3) transporting the petitioner to and from certain alcohol rehabilitative activities (such as, AA meetings); and 4) transporting the petitioner to and from classes at an accredited educational institution.11 The Illinois Secretary of State will not issue permits for more than 12 hours a day or six days a week.12 Petitioners who have traffic tickets pending in any court (other than a DUI with a pending suspension) or whose licenses also are suspended or revoked for other reasons are ineligible to apply for an Illinois RDP until the other matters are resolved.13
Before applying for an RDP, a person must obtain an alcohol evaluation from an agency licensed by the Illinois Office of Alcohol and Substance Abuse (OASA) and complete recommended treatment at a treatment service provider licensed by the OASA.14 Depending on the treatment level at which a petitioner is classified by the evaluation, other requirements also may apply. The various treatment levels and other requirements are below.
Level 1/Minimal Risk. Completion of an alcohol/drug risk education course (usually 10 hours) is required. Level 1 can be recommended only for petitioners who, at a minimum: 1) have no prior DUI dispositions or suspensions; 2) submitted to chemical testing and had a resulting blood alcohol level of less than 0.15; and 3) were not diagnosed with any other recognized symptoms of substance abuse or dependence.
Level 2M/Moderate Risk. Completion of an alcohol/drug risk education course (usually 10 hours) and an Early Intervention Counseling Program (minimum of 12 hours) is required. Level 2M can be recommended only for petitioners who, at a minimum: 1) have no prior DUI dispositions or suspensions; 2) submitted to chemical testing and had a resulting blood alcohol level of 0.15 to 0.19; and 3) were not diagnosed with any other recognized symptoms of substance abuse or dependence.
Level 2S/Significant Risk. Completion of an alcohol/drug risk education course (usually 10 hours), substance abuse treatment (minimum of 20 hours), and enrollment in and at least partial completion of aftercare or continuing care (usually two to three hours a month for six consecutive months) are required. Level 2S will be recommended for petitioners who, at a minimum: 1) have at least one prior DUI disposition or suspension; 2) submitted to chemical testing and had a resulting blood alcohol level of at least 0.20; or 3) were diagnosed with other recognized symptoms of substance abuse.
Level 3 High Risk/Dependent. Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of aftercare or continuing care (usually two to three hours a month for six consecutive months) are required. In addition, at the hearing the petitioner will have to submit proof of establishing an ongoing support and recovery program (for example, regular attendance at AA meetings for at least six months and obtaining an AA sponsor). The petitioner also will have to document at least 12 consecutive months of abstinence from alcohol and drugs.
Level 3 High Risk/Nondependent. Completion of a minimum of 75 hours of substance abuse treatment and enrollment in and at least partial completion of aftercare or continuing care (usually two to three hours a month for six consecutive months) are required. In addition, at the hearing the petitioner will have to submit proof of at least 12 consecutive months of nonproblematic use of alcohol (or abstinence if it had been recommended by an evaluator or treatment service provider) and abstinence from drugs.
Once the petitioner has met the applicable conditions, he or she will need to obtain an updated alcohol evaluation from either the original evaluator or the treatment service provider.15 If the petitioner has never previously been revoked for a DUI conviction, he or she is eligible for the appropriate type of administrative reinstatement hearing. However, if the petitioner has been revoked previously for another DUI conviction, the petitioner is ineligible for a hearing until the revocation has been in effect for at least one year.16
Illinois Has a Two-tiered Administrative Process
Illinois has a two-tiered administrative process for RDP applications and discretionary reinstatement proceedings. Illinois RDP and driver's license reinstatement procedures require either an informal or a formal hearing. An informal hearing is available to petitioners who are seeking an RDP or full reinstatement and have neither been previously convicted of DUI nor had a statutory summary suspension (either from a prior refusal or court supervision) from a previous DUI.17 All other petitioners must apply for relief through a formal hearing.18 Either process is lengthy and arduous compared to the Wisconsin administrative process for an occupational license application. The Illinois procedures require a risk assessment and treatment, and even may require the use of a breath alcohol ignition interlock device.
Informal hearings are conducted at many Secretary of State Drivers Service facilities throughout Illinois. They are summary proceedings, conducted on the date of application, on a "first come, first served" basis. It is advisable that the Illinois petitioner retain counsel for an informal hearing and for advice regarding the often arduous preparation for the informal hearing. The Wisconsin lawyer must work with a qualified Illinois lawyer to coordinate the proceedings.
The Wisconsin lawyer does not need a thorough understanding of the details of the informal Illinois process that applies to a typical first offender. Nevertheless, the Wisconsin lawyer must be aware that: 1) a discretionary informal administrative process is required; 2) the petitioner must anticipate and complete the risk assessment and treatment before an RDP will be granted; 3) retaining an Illinois lawyer who understands both statutory and customary procedures is advisable; 4) the Wisconsin lawyer should coordinate the proceedings with the Illinois lawyer to minimize the waiting period; and 5) it generally takes more than one month after the informal hearing for the Illinois Secretary of State to issue a decision on an RDP petition.
For those petitioners not eligible to make an informal application, there is a formal procedure to obtain an Illinois RDP or to reinstate a driver's license. This procedure requires a written application and an evidentiary hearing.
Illinois Treatment of First-offense Implied Consent Violations
Illinois authorities will treat a Wisconsin implied consent conviction less seriously than they will treat a first-offense OWI conviction. This means that in a plea negotiation situation, an Illinois driver often is better off accepting a Wisconsin refusal than a Wisconsin OWI. This is contrary to customary Wisconsin practice, in which the implied consent (refusal) charge usually is dismissed in return for a plea to the underlying OWI case.
An Illinois driver arrested in Wisconsin for OWI who subsequently refuses to submit to chemical testing will have his or her license suspended by the Illinois Secretary of State on receipt of a report from the Wisconsin Department of Motor Vehicles.19
The Illinois Vehicle Code does not specify the length of the suspension because it is classified as "discretionary."20 However, the Secretary of State's office typically will issue a six-month suspension, the same duration applicable to a statutory summary suspension for a first time offender who refuses chemical testing in Illinois after being arrested for a DUI.
The Illinois driver can contest the suspension at a formal hearing21 and informally petition for an RDP. Many Illinois drivers simultaneously will contest the refusal suspension and seek an RDP. If the driver is seeking only an RDP, that can be done at an informal hearing. If the driver subsequently is convicted of the DUI charge, then the length of the implied consent suspension served automatically will be credited against the minimum period of revocation imposed once the notice of revocation is issued by the Illinois Secretary of State.22
Illinois Drivers Require Different Disposition Strategies
A Wisconsin lawyer should not represent an Illinois driver in an OWI-PAC first-offense case unless the lawyer is prepared to engage in the different negotiation strategies and to litigate any issues that appear in the case. The consequences of a Wisconsin OWI for an Illinois driver potentially are more serious than for a Wisconsin driver; therefore, a more thorough and strenuous defense may be justified and, perhaps, necessary. A Wisconsin lawyer should be cautious in accepting such a case, since it may be necessary to give far more serious consideration to a jury trial. For the Illinois driver who must drive for a living, a jury trial may be the best choice. Therefore, counsel must be thoroughly familiar with all of the issues related to the stop, the detention, the arrest, implied consent, field sobriety testing, breath testing, blood testing, and so on. If, for example, the lawyer is not familiar with the process of direct injection gas chromatography, then the lawyer should decline to accept a blood test case for an Illinois driver. Additionally, the lawyer should charge a fee reasonably adequate to cover the more complicated and time-consuming defense that may be required.
The lawyer should explain to the prosecution the inequities faced by an Illinois driver. In a nonaggravated case, with proof of the defendant's voluntary alcohol treatment, some prosecutors may see fit to amend the OWI charge to a lesser offense. In many such cases an amendment of the OWI charge would be consistent with the plea-bargaining limitations of Wis. Stat. section 967.055.
Wisconsin practitioners should not blithely accept the standard disposition of the driver pleading guilty to the OWI or PAC in return for a dismissal of the refusal allegation. While this may be advantageous for a Wisconsin driver, it is definitely a wrong move for an Illinois driver. An Illinois driver is better off with a six-month refusal suspension than a potential lifetime revocation for a first-offense OWI.
In fact, the lawyer should consider proposing a disposition involving the legal fiction of an implied consent violation under Wis. Stat. section 343.30, even when the client actually consented to the chemical test.
Be Extremely Cautious When a Defendant Changes Residency to Wisconsin
The most controversial strategy used in resolving OWI cases for Illinois drivers is the practice of having the defendant change residency to Wisconsin and obtain a Wisconsin driver's license. If the Wisconsin pleadings are then changed to reflect the Wisconsin license information, an Illinois revocation may be avoided. There are several important warnings regarding this strategy:
1) If the Wisconsin residence is not legitimate, counsel is committing an unethical and possibly fraudulent act. The Wisconsin lawyer must never counsel or assist the defendant in anything resembling an illegitimate residence change. Any residence change must be factually real and legitimate.
2) An amendment or reissuance of the pleadings must be done in an open and transparent manner. While an open and transparent retroactive residence change and reissuance of the case may be ethical, a secretive change of address and license may be a fraud on the court.
3) It often does not work. A residence and driver's license change provides only bureaucratic, but not legal, protection to the Illinois driver. That is, the residence change may serve to prevent sending of a notice from Wisconsin to Illinois, but it does not change the fact that Illinois will act on any notice of the Wisconsin case, even if the Wisconsin pleadings reflect only Wisconsin information. If the defendant has a Wisconsin license and is subsequently revoked in Illinois the defendant will then face the complications of a multistate driver's license revocation. While the residence and license change might shield the client from notice to Illinois, they also might not. Stipulated amendment of the pleadings is ineffective, because Illinois still will be notified and act on the notice. While a dismissal of the original case and reissuance showing the Wisconsin license and residency will not generally trigger notice to Illinois, this also is not certain.
4) If the defendant attempts to reinstate his or her Illinois license, Illinois will check the driver's record. If Illinois relates the Wisconsin OWI offense to a date when the defendant held an Illinois license, Illinois will then issue a revocation order. Since this procedure requires the defendant to surrender his or her Wisconsin license on application to Illinois, the defendant then will be revoked in Illinois and also ineligible for a Wisconsin license due to the Illinois revocation.
5) A legitimate change of residence from Illinois to Wisconsin entails complications often overlooked. For example, the defendant will have to reregister his or her vehicles and change voting venue and might gain or lose public assistance or benefits or suffer serious tax consequences.
Illinois drivers have special requirements for the handling of a Wisconsin OWI or PAC case. Only attorneys experienced in contested litigation should become involved in these cases, because such litigation often is required.
Typical Wisconsin plea resolutions may not be appropriate for an Illinois driver.
The practice of reissuing pleadings that show a driver license and residency change is not, per se, unethical or unlawful. However, this practice is fraught with the risk of impropriety. Further, it often is ineffective.
The only certain way for an Illinois driver to avoid an Illinois driver's license revocation of one year to life for an OWI conviction is an acquittal, a dismissal, or a reduction of the OWI to a lesser charge. The only certain way to avoid an Illinois summary suspension of six months to three years for refusing chemical testing is to win the refusal hearing.