Monday, April 21, 2008

The Great and Mighty Secretary of State

For those of you who practice DUI defense and Traffic law, this may come as a nice little surprise and question for your practice.Recently in Champaign County the Secretary of State requested that approximately 100 ADR records of convictions for DUIs of convictions in 1998 be sent to the Secretary of State. The Circuit Clerk reviewed the records and told the Secretary of State that of those records some had been previously sent and well oops some of them had not. The Secretary of State did not care and requested all of them be sent.

Subsequently notices of Revocation were sent out to the people whose records were sent. Now realize some of these people knew this was a potential as their record had never been sent and their license never revoked. However, for other people who had already had their license revoked and had already had gotten their license reinstated it was quite a surprise. Not to mention, there was no warning - just a letter stating that their license was effectively revoked as of the date in the letter. Now the kicker to this whole scenario is that the application process to have your license reinstated can take quite a while. Also, in order to apply to have your license reinstated you need to have your original alcohol evaluation, a new evaluation, etc..... - well for those who did not keep good records, they were unable to get a copy of their original alcohol evaluation (the circuit clerk microfilmed the files and alcohol evaluations were not microfilmed and the main evaluator in 1998 for DUIs had since closed, etc...).

Now comes the question for the attorney, did the attorneys violate ethics or potentially liable to a malpractice claim for not making sure the ADR record was sent by the circuit clerk? And the most often question asked by the clients is there anyway around this? Well the simple answer I found is no - not really.The Circuit Clerk is required by statute to send the ADR conviction record within 5 days of the conviction. However, since there is no punishment for if they do not send it, they can send it at any time without repercussions. The Secretary of State by statute is allowed to impose a suspension or revocation of a driving license on the date it receives notice of the conviction. NOTE: date it receives notice of the conviction, NOT date of conviction. Thus, the Secretary of State could theoretically revoke a 90 year olds license for a DUI he/she received when they were 16.

How do you resolve the problem? Still to be determined, but if it is not alcohol related, I can tell you it takes a lot of calls to the Secretary of State before you will get any kind of answer. The answer I finally found after being told there was nothing they could do, was that when considering revocations and suspensions traffic ticket convictions over 7 years old cannot be considered (Lucky for me and my client).Will this issue come up again - Most definitely - previous to the Champaign County event, MADD (Mothers Against Drunk Driving) found boxes of records that had not been sent to the Secretary of State in another County, and promptly made sure they were sent causing many similar revocation letters to be sent out.


Michael W. Huseman said...
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Michael W. Huseman said...

I wonder how clients would have reacted if their lawyers at the time would have wanted to call the Sec of State to have them hurry up the suspensions. Some clients probably wouldn't appreciate that call in the hopes that the Sec of State might never get around to it.

Michael D. Wong said...

I was actually down in Champaign at this time and dealt with a similar situation earlier. While it may seem strange this is not a rare occurrence. In northern illinois MADD went to a courthouse and found boxes of ADR records that had not been sent to the Secretary of State. Subsequently several thousand people were notified of their revocations. The Secretary of State is a very strange and hard organization to figure out. If you ever run into this with a traffic ticket let me know as they are much more forgiving of those than they are of DUIs.
Initial reaction is no way its possible, but the statute states it is from the date that the secretary of state receives notice of ADR record, not date from when ADR record was sent. Moreover, Circuit Clerk is required to send ADR record within I think 7-14 days, however, if they dont there is no punishment so its a moot point if they do not send it in time.