Ill. Admin. Code tit. 92, § 1001.444 - Monitoring Device Driving Permit (MDDP) Provisions
a) Breath Alcohol Ignition Interlock Device
(BAIID) Required for Issuance; Fee Required
1) The Secretary shall notify a first
offender (MDDP offender), as defined in IVC Section 11-500, that he or she will
be issued an MDDP. The issuance of the MDDP shall be conditioned on the
installation and use of a BAIID in any vehicle operated, as required by IVC
Section 6-206.1. Only BAIIDs certified by the Secretary under Section
1001.442 of this Part may be
utilized. As provided in IVC Section 6-206.1, an MDDP offender must pay a
non-refundable fee in an amount equal to $30 per month times the number of
months or any portion of a month remaining on the statutory summary suspension
at the time the Secretary issues the MDDP. No fee will be charged for any month
in which the Secretary issues the MDDP on or after the
20th day of that month. This total, one time payment
for each MDDP issued must be paid in advance and prior to the issuance of the
MDDP. Payment must be submitted in the form of a money order, check or credit
card charge (with a pre-approved card), made payable to the Secretary of
State.
2) Any MDDP holder whose
summary suspension is extended or who is re-suspended as provided for in IVC
Section 6-206.1 and who applies for and obtains an extension or re-issuance of
an MDDP, shall likewise be required to pay the non-refundable fee for the
length of the period of extension or re-suspension under the same terms and
conditions as stated in subsection (a)(1). Any such suspension will not be
terminated until payment of any and all fees due under this Section is
made.
3) Any MDDP offender whose
driving privileges are otherwise suspended, revoked, cancelled or become
otherwise invalid is not eligible to receive an MDDP.
4) Any MDDP shall be invalid and must be
surrendered to the Secretary if an MDDP holder's driving privileges
subsequently are suspended, revoked, cancelled or become otherwise invalid
under any provision of the IVC, during the issuance period of the MDDP. This
includes a conviction and subsequent revocation of driving privileges for the
DUI arrest that resulted in the issuance of the MDDP. The MDDP offender,
including an MDDP holder that surrendered his or her MDDP prior to the
suspension, revocation, cancellation or invalidation of driving privileges, may
petition, at a formal hearing conducted pursuant to IVC Section 2-118, for a
restricted driving permit during the period of suspension, revocation,
cancellation or invalidation, if available pursuant to the IVC. In order to
obtain a restricted driving permit pursuant to this Section, the MDDP offender
must also satisfy the other provisions of this Part. Further, should a
restricted driving permit be granted, the MDDP offender may only operate
vehicles in which a properly working BAIID has been installed and is subject to
all of the provisions of the BAIID program.
5) Any MDDP holder whose MDDP is invalidated
as provided in subsection (a)(4), except those MDDP holders cancelled under IVC
Section 6-206.1(c-1), may obtain another MDDP upon termination of the sanction
that led to the invalidation as long as the offender is still eligible for an
MDDP. The offender must notify the Secretary in writing and submit the
statutory permit fee. Upon issuance of an MDDP, the MDDP holder is subject to
all of the provisions of this Section.
6) The MDDP holder may voluntarily terminate
participation in the MDDP program by written notification and surrender of the
permit to the Secretary's BAIID Division. This voluntary termination does not
in any way affect any sanction imposed under this Section. An offender may also
resume participation by notifying the BAIID Division in writing, but may do so
only once during the term of the suspension, extension or re-suspension due to
a violation of the program.
b) Compliance - Installation of
BAIID/Notification to the Secretary
1) The
MDDP Holder. Upon the issuance of an MDDP under this Section, the Secretary
shall make available a list of certified BAIID providers to the MDDP holder.
The MDDP holder may operate the vehicle for 14 days from the issuance date
stated on the MDDP without the BAIID installed solely for the purpose of taking
the vehicle to a BAIID provider or installer for installation of the BAIID. The
MDDP holder must be the individual who takes the vehicle to the installer to
have the BAIID installed and must have a reference image taken by the installer
at the time of installation. Failure to comply with this requirement will
result in the cancellation of the MDDP issued.
2) The Installer/BAIID Provider. A BAIID
provider or installer must:
A) Be qualified
and comply with all of the procedures and responsibilities set forth in Section
1001.442;
B) Within 7 days after the date of the
installation of the BAIID, notify the Secretary, in a manner and form specified
by the Secretary, that a BAIID has been installed in the vehicles designated by
the MDDP offender;
C) Upon
notification from the MDDP holder, as evidenced by the written form from the
Secretary that the MDDP holder has been found to be indigent, not charge the
MDDP holder for any installation, monthly monitoring, deinstallation fees, or
security deposit that exceeds one month's BAIID rental fee. This waiver of
charges and fees is limited to one vehicle per MDDP holder;
D) Upon request, make records available to
ensure compliance with the required payments to and reimbursements from the
Indigent BAIID Fund.
c) Compliance - Driving with BAIID. Any MDDP
offender receiving an MDDP under this Section must comply with the following
requirements:
1) Operate only vehicles with
an installed, operating BAIID certified by the Secretary whether the vehicle is
owned, rented, leased, loaned or otherwise in the possession of the MDDP
holder, as required by the MDDP issued under this Section.
2) Except when a BAIID has been installed
that may be read remotely, either take any and all vehicles operated by the
MDDP holder and with a BAIID installed or send the BAIID to the BAIID provider
or installer at least every 60 days, which shall be referred to as the
monitoring period, commencing with the date of installation, for the purposes
of calibration and having a monitor report of the BAIID's activity prepared and
sent to the Secretary by the BAIID provider or installer. The monitoring period
will be 30 days for any MDDP holder whose summary suspension is extended or who
is re-suspended for a violation of the MDDP program.
3) If a BAIID has been installed that permits
the MDDP offender to mail in a portion of the BAIID to be read and calibrated,
or that allows the BAIID to be read remotely, bring the vehicle into a BAIID
installation site at least once every 6 months so that the BAIID and all
related wiring and connections may be inspected for signs of tampering or
circumvention.
4) Within 5 working
days after any service or inspection notification, take the vehicle with the
BAIID, installed to the BAIID provider or installer or send the appropriate
portion of the BAIID to the BAIID provider or installer as instructed for a
monitor report.
5) Maintain a
journal of events recording unsuccessful attempts to start the vehicle,
failures to successfully complete a running retest, any problems with the
BAIID, and the name of the driver operating the vehicle at the time of the
event. If BAIIDs have been installed on multiple vehicles, a separate journal
must be kept for each vehicle, recording unsuccessful attempts to start the
vehicle, failures to successfully complete a running retest, any problems with
the BAIID, and the name of the driver operating the vehicle at the time of the
event.
6) Ensure that the BAIID
camera is aimed, and the person using the BAIID is situated, so that the camera
captures a clear and accurate image of the individual blowing into the BAIID,
including a sufficiently wide angle that it will be possible to determine
whether the individual blowing into the BAIID is seated in the driver's seat
and whether a circumvention device has been inserted into the mouthpiece of the
BAIID.
7) Shall not have a BAIID
removed or deinstalled from a vehicle prior to notifying the Secretary and
surrendering the MDDP to the Secretary or the Secretary's designee.
8) Shall not commit any of the violations
listed in subsection (d).
d) Violations. Any of the following, when
committed by an MDDP holder, constitutes a violation of the MDDP program:
1) A conviction or court supervision for any
of the offenses listed in IVC Section 6-206.1(c-1);
2) Tampering or attempting to tamper with, or
unauthorized circumvention of, the BAIID, including the use of any product
intended to prevent accurate readings by the BAIID;
3) A violation of IVC Section
6-206.2;
4) 10 or more unsuccessful
attempts to start the vehicle with a BAIID installed within a 30 day period,
excluding a BrAC reading of 0.05 or more;
5) 5 or more unsuccessful attempts to start
the vehicle within a 24 hour period, excluding a BrAC reading of 0.05 or
more;
6) A BrAC reading of 0.05 or
more;
7) Failing a running retest,
or failing to take a running retest;
8) Removing the BAIID without authorization
from the Secretary;
9) Failing to
utilize the BAIID as required;
10)
Failing to submit a BAIID for a monitor report in a timely manner;
11) Failing to bring a vehicle into a BAIID
installation site at least once every 6 months so that the BAIID and all
related wiring and connections may be inspected for signs of tampering or
circumvention;
12) Preventing the
camera from taking clear and accurate images of the permittee blowing into the
mouthpiece, including a sufficiently wide angle that it will be possible to
determine whether the individual blowing into the BAIID is seated in the
driver's seat and whether a circumvention device has been inserted into the
mouthpiece of the BAIID.
e) Sanctions Upon Commission of a Violation.
Upon notification of any of the violations in subsection (d), the Secretary
shall take the following action:
1) For a
conviction or court supervision for any of the offenses listed in IVC Section
6-206.1(c-1), or a notification from a BAIID provider or installer that a
physical inspection of any BAIID permittee's vehicle showed any tampering with
or unauthorized circumvention of the BAIID, immediately cancel the MDDP, extend
the suspension as provided for in IVC Section 6-206.1(1), and authorize the
immediate removal/deinstallation of the BAIID. If the MDDP had expired prior to
the Secretary receiving notification of the conviction, supervision or
violation, the Secretary shall re-suspend the MDDP offender as provided for in
IVC Section 6-206.1(l). The MDDP offender may then file a petition for the
issuance of an RDP. The MDDP offender must have a formal hearing pursuant to
IVC Section 2-118 and satisfy all the requirements of this Subpart D in order
to obtain the permit.
2) For any
MDDP holder whose monitor report or other sufficient evidence shows any
tampering or unauthorized circumvention of the BAIID, or who fails to bring his
or her vehicle in for an inspection pursuant to subsection (c)(3), send the
MDDP holder a letter asking for an explanation of the failure to bring the
vehicle in for an inspection or an explanation of the tampering or unauthorized
circumvention. If a response is received within 21 days after the date of the
Secretary's letter and it reasonably assures the Secretary that no violation
occurred, no further action will be taken. If a response is not received within
21 days or does not reasonably assure the Secretary, the Secretary shall
immediately cancel the MDDP, extend the suspension as provided for in IVC
Section 6-206.1(1), and authorize the immediate removal/deinstallation of the
BAIID. If the summary suspension is already terminated prior to the MDDP holder
failing to bring his or her vehicle in for an inspection pursuant to subsection
(c)(3), or prior to the Secretary receiving the monitor report/physical
inspection showing the violation, the Secretary shall re-suspend the MDDP
offender as provided for in IVC Section 6-206.1(1). The MDDP offender may then
file a petition for the issuance of an RDP. The MDDP offender must have a
formal hearing pursuant to IVC Section 2-118 and satisfy all the requirements
of this Subpart D in order to obtain the RDP.
3) For any MDDP holder whose monitor report
shows: 10 or more unsuccessful attempts to start the vehicle with a BAIID
installed, within a 30 day period; or 5 or more unsuccessful attempts to start
the vehicle with a BAIID installed, within a 24 hour period; or any single BrAC
reading of 0.05 or more, send the MDDP holder a letter asking for an
explanation of the unsuccessful attempts to start the vehicle or the BrAC
reading. If a response is received within 21 days after the date of the
Secretary's letter and it reasonably assures the Secretary that no violation
occurred, no further action will be taken. If a response is not received within
21 days or does not reasonably assure the Secretary, the Secretary shall extend
the summary suspension for 3 months. If the summary suspension is already
terminated prior to the Secretary receiving the monitor report showing the
violation, the Secretary shall re-suspend for 3 months. Should any monitor
report show multiple violations, each violation provided for in this subsection
shall be a separate violation requiring a separate 3 month extension or
re-suspension.
4) For any MDDP
holder whose monitor reports show a failure to successfully complete a running
retest, send the MDDP holder a letter asking for an explanation of the failure
to successfully complete a running retest. If a response is received within 21
days after the date of the Secretary's letter and it reasonably assures the
Secretary that no violation occurred, no further action will be taken. If a
response is not received within 21 days or does not reasonably assure the
Secretary, the Secretary shall extend the summary suspension for 3 months. If
the summary suspension is already terminated prior to the Secretary receiving
the monitor report showing the violation, the Secretary shall re-suspend for 3
months.
5) For a
removal/deinstallation of a BAIID without authorization, including a removal or
deinstallation caused by the MDDP holder's failure to pay lease or rental fees
due to the BAIID provider, the Secretary shall immediately cancel the
MDDP.
6) For a failure to utilize
the BAIID by the MDDP holder as required, the Secretary shall extend the
summary suspension for 3 months. If the summary suspension is already
terminated prior to the Secretary receiving the monitor report showing the
violation, the Secretary shall re-suspend for 3 months.
7) For a failure to submit a BAIID for a
monitor report in a timely manner, the following procedure will be followed:
unless notified by a BAIID provider that the BAIID has been removed, all
monitor reports shall be submitted to the Secretary within 37 days after
installation and within every 37 days thereafter. If the Secretary fails to
receive an MDDP holder's monitor reports within the 37 days, the Secretary will
conduct an informal inquiry (will attempt to contact the BAIID provider and
MDDP holder by telephone or e-mail) for the purpose of determining the cause
for this failure. If it is determined or if it appears that the MDDP holder
failed to take in a vehicle with the BAIID or send the BAIID in for timely
monitor reports, then the Secretary will send a letter to the MDDP holder
stating that, if the BAIID is not taken in for a monitor report within 10 days
after the date of the letter, the Secretary will extend the summary suspension
for 3 months, or, if the summary suspension is already terminated prior to the
Secretary receiving the monitor report showing the violation, the Secretary
will re-suspend for 3 months. If the MDDP holder cannot be located or does not
respond to the Secretary's request for information, the MDDP shall be cancelled
or, if the MDDP has expired, the Secretary shall re-suspend the MDDP as
provided for in IVC Section 6-206.1(l).
8) Violations detected in any one monitoring
period shall not, however, result in extensions or re-suspensions totaling more
than six months, except as provided in subsection (e)(10).
9) If the MDDP holder is re-suspended for a
violation that was not reported to the Secretary until after the termination of
the MDDP holder's summary suspension, the MDDP holder may obtain another MDDP
by notifying the Secretary in writing and submitting all required
fees.
10) When an image shows that
the MDDP permittee has utilized any product that allows the permittee to avoid
blowing directly into the mouthpiece of the BAIID, or when any step has been
taken to prevent a clear and accurate image of the driver and mouthpiece, the
Secretary shall extend the summary suspension for 3 months.
f) Hearing to Contest Cancellation
of MDDP or Extension of the Summary Suspension. Any MDDP holder whose summary
suspension is extended or re-suspended, or whose MDDP is cancelled as provided
for in this Section, may request a hearing to contest that action. A written
request, along with the $50 filing fee, must be received or postmarked within
30 days from the effective date of the extension, re-suspension or
cancellation. The hearing will be conducted as any other formal hearing under
this Part.
g) MDDPs - Content. Any
MDDPs issued as provided for in this Section shall, in addition to all other
requirements, state at a minimum that:
1) The
MDDP is issued pursuant to the BAIID requirements of this Section and that a
vehicle operated by an MDDP holder must be equipped with a certified,
installed, properly operating BAIID;
2) The provisions of the MDDP also allow the
MDDP holder to drive to and from the BAIID provider or installer for the
purpose of installing the BAIID within 14 days after the issuance date on the
MDDP;
3) Once the BAIID is
installed, the MDDP holder may drive the vehicle with the BAIID properly
installed for any purpose and at any time;
4) If applicable, the MDDP holder qualifies
for any modification or waiver of BAIID, as provided in subsection (i), or
employment exemption from BAIID, as provided in subsection (j).
h) Use of Monitor Reports. The
Secretary shall gather all available monitor reports and images, and any other
information relative to the MDDP holder's performance and compliance with the
BAIID requirements under this Subpart D. The reports, images and information
may be used as evidence at any administrative hearing conducted by the
Secretary under this Part.
i)
Modification or Waiver of BAIID. Upon request of the MDDP holder, the Secretary
may consider a medical or physical BAIID modification or waiver for an MDDP
issued under this Section. When an MDDP holder provides a report from a
physician stating that the MDDP holder is physically unable to produce an
adequate breath sample to operate the BAIID, the Secretary may allow the MDDP
holder to install a BAIID that operates with a lower breath sample requirement.
When an MDDP holder is the owner of only one vehicle, this modification may
also be granted if an immediate family member who resides with the MDDP holder
must drive the vehicle and the immediate family member is unable to provide an
adequate breath sample to operate the BAIID. The Secretary may, at his or her
discretion, obtain a review of the physician's report by the Secretary's
Medical Advisory Board.
j)
Employment Exemption from BAIID Requirements. In determining whether an MDDP
holder is exempt from the BAIID requirements pursuant to the waiver provided
for in IVC Section 6-206.1, the following shall apply:
1) The term "employer" shall not include an
entity owned or controlled in whole or in part by the MDDP holder or any member
of the MDDP holder's immediate family, unless the entity is a corporation and
the MDDP holder and the MDDP holder's immediate family own a total of less than
5% of the outstanding shares of stock in the corporation. Immediate family
shall include spouse, children, children's spouses, parents, spouse's parents,
siblings, siblings' spouses and spouse's siblings;
2) The exemption shall not apply when the
employer's vehicle is assigned exclusively to the MDDP holder, or the MDDP
holder uses the vehicle for commuting to and from employment or for other
personal use and no person may drive the exempted vehicle more than 12
hours per day, 6 days per week [625 ILCS
5/6-206.1(a-2)];
3) Appropriate limits will be established for
necessary on-the-job driving. The days, hours and mileage limits will not
exceed those necessary for the accomplishment of the MDDP holder's primary
employment;
4) This exemption is
subject to termination if the Secretary obtains or receives credible evidence
that it is being abused or violated by the MDDP holder, such as, but not
limited to, driving outside the scope of his or her employment, or driving the
employer's vehicle from his or her residence to the place of employment. Upon
obtaining or receiving credible evidence of the abuse or violation of an
exemption, the Secretary shall send the MDDP holder a letter that requests a
response to the evidence. If a response is received within 21 days after the
date of the Secretary's letter and it reasonably assures the Secretary that an
abuse or a violation did not occur, no further action will be taken. If a
response is not received within 21 days or does not reasonably assure the
Secretary, the Secretary shall immediately terminate the exemption;
5) The Secretary will also inform the MDDP
holder whose employment exemption is terminated that he or she remains eligible
to have a BAIID installed in his or her personal vehicle and the employer's
vehicle without a hearing. Failure to have the BAIID installed by the date
designated by the Secretary will result in the termination of the
MDDP;
6) The denial of an exemption
and the termination of an exemption may be contested pursuant to Section
1001.441(k);
7) An exemption also will be granted to an
MDDP holder who can prove that his or her duties include test driving vehicles
not owned by the permittee. The exemption will be limited to this purpose, and
to no more than a 5 mile radius from the permittee's place of
employment.
k)
Decertification of BAIID Provider or BAIID and Denial of BAIID Provider
Certification or BAIID Certification. The Secretary must notify the MDDP holder
of the decertification or denial of certification of a BAIID provider or of a
particular type of BAIID. The MDDP holder must then select a new BAIID provider
or type of BAIID from the list of approved BAIID providers maintained by the
Secretary. The MDDP holder must inform the Secretary of that selection within 7
days after the receipt of notification from the Secretary. The MDDP holder must
complete registration with a new BAIID provider and/or installation of a new
BAIID within 21 days after the receipt of the notification from the Secretary.
Failure to complete these steps within the 21-day period may result in
cancellation of the MDDP holder's MDDP. All costs related to any change in a
BAIID provider or a BAIID shall be paid by the MDDP holder, unless the
Secretary has deemed the MDDP holder indigent.
l) Indigent BAIID Fund
1) Any BAIID provider who installs a BAIID
under the MDDP program must pay 5% of the total gross revenue received by each
contract entered into with an MDDP holder who is not found to be indigent by
the Secretary, referred to in this subsection as the surcharge.
A) The surcharge shall include only those
fees normally charged an MDDP holder for installation, monthly rental and
monitoring, and deinstallation of the BAIID during the term of the MDDP
holder's statutory summary suspension.
B) The surcharge shall be submitted to the
Secretary by the 8th of each month and shall include
all surcharges incurred during the previous month. The surcharge must be
submitted in the form of a check, made payable to the Secretary of State, or by
electronic transfer as agreed to by the Secretary and the BAIID
provider.
C) Should the summary
suspension of an MDDP holder be extended or a re-suspension issued under the
MDDP program and the holder continue to participate in the program, the
surcharge is due for the period of extension or re-suspension.
2) Any BAIID provider who installs
a BAIID under the MDDP program for an MDDP holder who has been found to be
indigent by the Secretary may apply for reimbursement for any fees incurred as
set out in subsection (b)(2)(C). A provider must submit an invoice to the
Secretary by the 8th of the month following the end
of each quarter of the Secretary of State's fiscal year, which must include the
name and driver's license number of each indigent client, as well as a brief
description of the services provided and the date those services were rendered.
The Secretary will authorize payments in accordance with IVC Section
6-206.1(o). No payment for the quarter may be authorized if the provider fails
to submit an invoice within the time set forth in this subsection (l)(2) or if
the provider fails to submit a check or electronic transfer for the surcharge
within the time frame set forth in subsection (l)(1)(B). If a provider has
submitted an invoice to the Secretary that under-reports the number of indigent
clients served in the previous quarter, the provider may not submit a
subsequent invoice seeking reimbursement for services provided to the
unreported indigent clients.
3) The
Secretary may audit the records of BAIID providers or installers to ensure
compliance with the required payments to and reimbursements from the Indigent
BAIID Fund.
4) An MDDP offender may
be declared indigent by the Secretary if the MDDP offender's total monthly
income is 150% or less of the federal poverty guidelines, as evidenced by a
certified transcript of the United States or State of Illinois tax return for
the most recently completed calendar year.
A)
For an MDDP offender who has not filed a United States or State of Illinois tax
return for the most recently completed calendar year, indigency may be declared
if:
i) The MDDP offender is currently
receiving Temporary Assistance to Needy Families (TANF) benefits, as evidenced
by documentation from the Illinois Department of Human Services;
ii) The MDDP offender is currently receiving
Supplemental Nutrition Assistance Program (SNAP) benefits, as evidenced by
documentation from the Illinois Department of Human Services.
B) For the MDDP offender who has
not filed a United States or State of Illinois tax return for the most recently
completed calendar year and is not currently receiving TANF or SNAP benefits,
indigency may be declared if the MDDP offender is receiving Supplemental
Security Income (SSI) from the Social Security Administration and the MDDP
offender completes an affidavit under penalty of perjury swearing the total
amount of income received from all sources, including SSI, is 150% or less of
the federal poverty guidelines.
5) An MDDP holder's indigency status shall be
valid for the length of the MDDP. Any MDDP holder whose summary suspension is
extended beyond the length of the MDDP, who wishes to continue participation in
the MDDP program and wishes to be declared indigent, must submit current
documentation as set forth in subsection (l)(4).
m) Reciprocity with Other States. The
Secretary will honor the BAIID requirements imposed by other states on Illinois
drivers and drivers licensed in other states, for offenses committed in other
states, and will reciprocate other states' recognition of BAIID requirements
imposed by Illinois on drivers licensed in Illinois, or licensed in other
states for offenses committed in Illinois.
Notes
Amended at 37 Ill. Reg. 5844, effective April 19, 2013
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