Note: This article was updated to reflect 2020 changes in Illinois law regarding statutory summary suspensions and driving under the influence of alcohol. The changes are effective as of January 1, 2020.
A statutory summary suspension is an administrative action taken by the Secretary of State on a person’s Illinois driving privileges. If, during an arrest for driving under the influence, the person fails chemical testing or refuses to submit to chemical testing, his license will be subject to a statutory summary suspension.
A few common misconceptions are that a successful result in the DUI case will automatically rescind the suspension, or that the suspension begins only if someone is found guilty of a DUI. Neither are true. The summary suspension is a civil penalty that is separate and independent from the DUI criminal offense. A person can be found not guilty of DUI and yet still suffer a summary suspension, because the issue with a summary suspension is that the person either failed chemical testing (eg, blew a 0.08 or higher on the breathalyzer or tested positive for cannabis or a controlled substance) or refused to submit to chemical testing. The summary suspension is not initiated because of guilt or innocence for the offense of DUI. Rather, it is limited strictly to whether the person took the test or refused.
Like all states, Illinois has an implied consent law, which basically means that if a person operates a motor vehicle on any public highway of this state, he is deemed to have consented to the testing of blood, breath, or urine for an alcohol concentration of 0.08 or more or the presence of intoxicating drugs. While the driver may not have agreed to this explicitly, consent is implied by driving in the state. Additionally, if the person failed the test or refused, he is subject to the civil penalty of suspension of driving privileges.
The statutory summary suspension is imposed on driving privileges. If a person has a driver’s license from another state, the Illinois Secretary of State has no authority to suspend that person’s license, because it did not issue the license. Rather, Illinois may only suspend a person’s privileges of driving within the boundaries of the state of Illinois. If the home state takes action on the person’s license because of the Illinois summary suspension, that is controlled by the home state’s laws. Of course, if a person has an Illinois driver’s license, then it is suspended pursuant to the summary suspension.
The summary suspension becomes effective 46 days after the arrest for DUI. In situations where the summary suspension is based on the results of blood or urine testing, the effective date of the suspension is delayed because the test results are not immediately available. In these cases, the effective date will be 46 days from the date the arresting officer mails a Notice of Summary Suspension to the defendant. Usually the officer will mail the notice within 7-14 days after receiving the test results from the laboratory.
The law in Illinois says that a statutory summary suspension’s length is determined by two factors:
- Whether the person is a first offender.
- Whether the person failed the test or refused.
A person is a first offender if he or she has no prior DUIs or statutory summary suspensions from Illinois or any other state within the last 5 years. See 625 ILCS 5/11-500. As the law is written, a first offender can be a person with a prior DUI offense or summary suspension. In fact, the person can theoretically have multiple prior offenses or summary suspensions as long as none of them are within the last 5 years.
This illustrates the difference between a civil penalty and the criminal offense of DUI. A person can be a first offender for purposes of the summary suspension but not for purposes of sentencing on the criminal offense of DUI. The summary suspension is a civil penalty and is separate from the criminal offense of DUI.
A first offender who fails chemical testing will have a summary suspension for 6 months, while a first offender who refuses will be suspended for 12 months.
On the other hand, if the person does not qualify as a first offender and he or she fails the test, the summary suspension will be 12 months. If the person is not a first offender and he or she refuses, the suspension will be for 36 months. The length of suspension for a second offender who refuses the testing is highly draconian.
A statutory summary suspension, as the name suggests, is imposed pursuant to statute, 625 ILCS 5/6-208.1. The suspension is summary in the respect that it takes effect automatically. The police officer will complete a Notice of Summary Suspension, provide a copy to the defendant, and mail a copy to the Circuit Court and the Secretary of State. The begins the process of suspension, which takes effect on the 46th day after a copy of the notice was provided to the defendant.
The defendant can challenge the suspension in the Circuit Court by requesting a hearing. On the back side of the Notice of Summary Suspension, above where it reads Receipt to Drive, there is a Notice to Motorist of the Right to a Hearing. This notice describes the defendant’s right to a hearing on the summary suspension.
The request for hearing must be in writing and filed in the Circuit Court of venue. The Circuit Court of venue is the courthouse for the county in which the offense of DUI took place. Usually, the court where the defendant must appear as indicated on the ticket is the proper venue.
The request for hearing must be filed within 90 days after the date of the Notice of Summary Suspension, which is usually 90 days after the date of arrest. This 90 day deadline is a firm one with few exceptions, so it is important to get it filed within the allotted time. The request for hearing is called a Petition to Rescind Statutory Summary Suspension, and almost all counties have their own form for this petition. The petition to rescind can be filed by a defendant without the assistance of an attorney, but this is not advisable. The hearing on a petition to rescind is a complicated issue and therefore is covered in other articles on this site. It is critical to have a seasoned attorney handle the filing of the request as there are filing requirements that must be fulfilled. For example, some prosecutors will ask to strike the petition if a copy of the Law Enforcement Sworn Report is not attached or if their office was not properly served with the appropriate paperwork.
If a person is a first offender, he will be eligible for a special permit allowing him to drive during the period of summary suspension. The permit is called a Monitoring Device Driving Permit (MDDP). See 625 ILCS 5/6-206.1. The MDDP requires the installation of a Breath Alcohol Ignition Interlock Device (BAIID) in the vehicle that checks the driver’s breath alcohol concentration before allowing the ignition to start. As long as the breath alcohol concentration is less than 0.05, the driver may operate the vehicle anywhere, 24 hours a day.
Prior to 2018, there was a 30 day hardship period, and the MDDP was not effective for the first 30 days of the summary suspension, however. In this way, the defendant had to serve a hard 30-day suspension. However, the law changed and the 30 day hardship was eliminated. As such, as long as the defendant applied for an MDDP with the Illinois Secretary of State and installed a breathalyzer in their vehicle. They would be able to drive immediately upon the commencement of their suspension. The MDDP would allow the person to drive for the remainder of the summary suspension.
This is a huge improvement over the old driving permit which was known as a Judicial Driving Permit, or JDP. Under the JDP, the driver would only be able to drive to work or school and would have to take designated roadways during designated times, but a breathalyzer was not required. Under the new law, the driver is free to drive wherever they want, whenever they want but a breathalyzer is required with the MDDP.
A person who is not a first offender does not qualify for an MDDP. This is why the petition to rescind is a critical stage of the case, and a lawyer should be consulted.
In a DUI case, the statutory summary suspension is crucial.
