Monitoring Device Driving Permit

Effective January 1, 2009, the judicial driving permit (JDP), a hardship license formerly granted to first offenders (see 625 ILCS 11-500 for definition of “first offenders”) is abolished for all arrestees on or after January 1, 2009. 625 ILCS 5/6-206.1 makes several substantial changes to the implied consent laws. Two matters are not affected: First, summary suspension hearings and procedures remain the same, other than the fact the length of the suspensions double (six months for a test failure, twelve months for a test refusal); and second, criminal DUI laws do not change.

guardian-3060-imageThe new law provides for the following: in place of the judicial driving permit (JDP), the new law creates the Monitoring Device Driving Permit (MDDP).  The new law gives the first offender the option to drive after the 31st day of his or her suspension period, for any purpose and at any time. Unless a defendant opts out of the MDDP device, the driver must agree to have a breath alcohol interlock ignition device (BAIID) installed on the car that the offender drives. (See Section 3 for a more detailed discussion of BAIID devices). If a driver is caught driving during a summary suspension, and he or she has opted out of the MDDP device, he or she will be charged with a Class 4 felony punishable by up to 1-3 years of incarceration.

The MDDP is available only to “first offenders”, which is defined in 625 ILCS 11-500. Essentially, a “first offender” is a person who has had no DUI suspensions or findings of guilty in the past 5 years. MDDP’s are available only for “first offenders”, unless:

  • The offender’s driver’s license is otherwise invalid;
  • Death or great bodily harm resulted from the arrest for Section 11-501;
  • The offender has ever been previously convicted of reckless homicide; or
  • The offender is less than 18 years of age.

Unlike the requirements for a JDP, a first offender is entitled to an MDDP if he or she fits the above qualifications. The court has no discretion and must enter an Order directing the Illinois Secretary of State to issue a monitoring device driving permit, unless the offender opts out in writing:

“(e) Following a statutory summary suspension of driving privileges pursuant to Section 11-501.1, for a first offender, the circuit court shall, unless the offender has opted in writing not to have a monitoring device driving permit issued, order the Secretary of State to issue a monitoring device driving permit as provided in Section 6-206.1. A monitoring device driving permit shall not be effective prior to the 31st day of the statutory summary suspension.” 625 ILCS 5/6-208.1

Further, unlike the requirements for a JDP, the offender does not need an alcohol evaluation or any supporting documentation in order to have an MDDP granted. In summary, the steps involved in the MDDP process include:

  1. An offender is arrested for DUI;
  2. The Arresting Officer prepares and submits a Law Enforcement Sworn Report to the Secretary of State (SOS);
  3. The Secretary of State sends a Notice Order of Summary Suspension to the offender (effective on the 46th day after the test or refusal), along with MDDP information;
  4. The offender appears in Court for the DUI;
  5. The trial judge asks the offender whether he or she wants an MDDP;
  6. If the offender says yes, then the Court enters and an Order for an MDDP;
  7. If the offender says no, then the offender is admonished by the Court and the offender signs an ‘opt out’ statement;
  8. If the offender replies yes, then an Order for the MDDP is sent to the Secretary of State;
  9. The Secretary of State receives the Court Order;
  10. The SOS reviews the offender for eligibility and determines any requirements that must be fulfilled (i.e. cost)
  11. The SOS sends the offender the requirements for the MDDP, i.e. the bill, etc.;
  12. Once the offender meets the requirements, then the SOS sends the offender the MDDP;
  13. The offender then has 14 days to have the MDDP installed in her or his automobile.

The MDDP law requires the offender to pay to the SOS an administrative fee of $30.00 per month. See 625 ILCS 5/6-206.1. The entire number of months for the period of the MDDP use must be paid in advance. (i.e $150.00 for a 6 month test failure suspension and $330.00 for a twelve month refusal suspension.)

The offender must take the vehicle to a certified BAIID installation company. These are private companies. The private companies will charge an installation fee (approximately $150.00) as well as a monthly fee for the device (approximately $115.00 per month).

Once installed, the device begins monitoring. The device is initially uploaded to the SOS to notify their Office of installation. If not uploaded initially, then eventually the MDDP is cancelled.

Thereafter, the offender must bring the vehicle to the installer every 30 days for readings. The BAIID company sends a report to the SOS monthly, and the SOS computer searches for violations. The Secretary of State has promulgated a specific set of rules regarding MDDP violations and other MDDP-related issues. These rules can be found at 92 Ill. Adm. Code 1001, and in the Illinois Register at Volume 32, Issue 28, pages 9819 to 9869 as proposed amendments, or online at:

http://ilsos.net/departments/index/register/register_volume32_issue28.pdf

If the offender receives any moving violation during the MDDP period, the SOS shall extend the suspension for another 6 or 12 months, depending upon the initial length of the suspension:

“(b) The Secretary of State upon receiving a report of the conviction of any violation indicating a person was operating a motor vehicle during the time when said person’s driver’s license, permit or privilege was suspended by the Secretary, by the appropriate authority of another state, or pursuant to Section 11-501.1; except as may be specifically allowed by a probationary license to drive, judicial driving permit issued prior to January 1, 2009, monitoring device driving permit, or restricted driving permit issued pursuant to this Code or the law of another state; shall extend the suspension for the same period of time as the originally imposed suspension; however, if the period of suspension has then expired, the Secretary shall be authorized to suspend said person’s driving privileges for the same period of time as the originally imposed suspension.” 625 ILCS 5/6-303

MDDP Violations include:

  • Tampering or attempted tampering
  • 10 or more unsuccessful starts within a 30-day period
  • 5 or more unsuccessful starts within a 24-hour period
  • BAC of .05 or more
  • Failing a running re-test
  • Failing to take a running re-test
  • Removing the BAIID device
  • Failing to utilize the BAIID as required (under-usage)
  • Failing to submit a timely monitoring report.

In addition, a driver must keep a journal of:

  • Unsuccessful starting attempts
  • Failure to successfully complete a running re-test
  • Any problem with the device
  • Name of the driver for each of the above.

If the S.O.S. determines that a violation has occurred, their Office will notify the driver, who then must respond in writing within 21 days. The SOS can extend the suspension for an additional 3 months.

After the third extension of the statutory summary suspension, local law enforcement will impound the vehicle for 30 days. After a fourth violation, the vehicle is permanently seized.

If an offender is indigent, then an indigent fund can cover all or part of the cost of an MDDP.