If you have an interlock and are going back for the full license, this may apply to you. Recently, our firm has seen more than one client not being given due process rights for license restoration “violations.” As you know, the are numerous actions or situations that may result in a major violation, including:
- A roiling retest violation
- Tampering with the interlock
- Being arrested for another drunk driving
- The minor violations within a monitoring period
In addition, if you blow into the interlock device to start up your vehicle, and the result is a .025 or higher, you will have a few minutes to blow into it again to make sure you haven’t been drinking. If, after the second time, it still reads above a .025 BAC, it will result in a major violation resulting in a hearing… or so we thought.
In two instances in which this firm has been involved, the Secretary of State has not been sending out notices of violations for people who “test positive”. At first glance, you may be thinking to yourself that not receiving a violation in the mail is a good thing. Not always.
In the two instances our firm was involved in, our clients had an interlock device for the required year and went back a second time to get the interlock removed and receive a full license. It was at this time they were blindsided by the Hearing Officer, who on both occasions claimed that our clients tested positive for alcohol on one or more days during the time they had an interlock device. They never received any notice of violations and were not afforded the right to contest the allegations like they should have been. Not only did they not receive their full license, but they were stripped of their restricted license, and the revocation was reinstated
On appeal to Circuit Court, our firm argued that our clients were not afforded their right to contest the alleged violations, resulting in a violation of their Due Process Rights. While minor violations can be added in this manner, the is Cleary stated by the Secretary of State that having a BAC of .025 while blowing into the interlock device, is considered a major violation. According to the Secretary of State, “Operators who receive an ignition interlock violation resulting in reinstatement of a revocation/denial of driving privileges may appeal the violation. Any appeal is due within 14 days of the effective date of the reinstatement.” While you MAY appeal the alleged violation, they are required to at least afford you that opportunity.
In both situations our firm was involved in, upon the second attempt to start their vehicle, it did in fact start, which led our clients to believe that they were not above a .025. In addition to the vehicle starting up, neither received a notice of violation, leading them to believe they were below the required .025. It is required that if you do test positive, you are required to go and get an ETG as proof you are not consuming alcohol. The ETG is presented to the Hearing Officer at the time of the violation hearing.
Because our clients did not have ETGs ready at the hearing to gain full driving privileges, they had nothing to present to the Hearing Officer when blindsided by the allegations.
Upon appeal to the Circuit Court, the Judge agreed that they should have been afforded their due process right to contest this “major violation.” The Secretary of State allowed both individuals to continue driving, one for 18 more months after their “positive tests.” By doing this, the Secretary of State retains 100% power without giving you any right to contest it
If you are in a situation where during the course of your interlock you test positive, and upon the second attempt, the vehicle starts, it may be wise to get an ETG just in case. If you don’t, and your license was revoked at the re-hearing without being given the right to contest the allegation, call an attorney about your rights to appeal to your local Circuit Court. Your Due Process rights should not be taken away from you.