Evaluating the Illinois DUI Evaluation Tool

Illinois law says counselors are to use the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) to classify DUI offenders. But the Illinois evaluation tool, known as the Uniform Report, uses different guidelines with divergent results.

When a person is arrested for DUI in Illinois, before a sentence is imposed, the DUI offender must obtain a drug and alcohol evaluation. Most people in the legal profession, and those connected to the legal profession (counselors, secretary of state hearing officers, probation officers, social workers, etc.) have a basic understanding of how the evaluation process works:

1. The DUI offender meets with a licensed drug and alcohol evaluator who collects information.
2. The information is documented in the Uniform Report.
3. The Uniform Report determines a person’s risk level.
4. The risk level determines everything else.

The risk level determines the number of required treatment hours. If the offender’s driver’s license is revoked, the risk level determines the type of evidence that the DUI offender would have to present to the Office of the Secretary of State to regain driving privileges.

But the Illinois evaluation tool—the Illinois DUI evaluation, or Uniform Report—is fundamentally flawed. DUI offenders are systematically misclassified with a more severe alcohol and drug problem than if the offender had been evaluated using current mental health evaluation tools.

Determining risk level

Section 5-4-1 of the Unified Code of Corrections generally requires that prior to the imposition of sentence for a DUI, “the individual must undergo a professional evaluation to determine if an alcohol or other drug abuse problem exists and the extent of such a problem.”¹ It is the Administrative Code, not the statute, that provides the mechanisms by which the “professional evaluation” will determine the “extent” of the problem. As set forth in section 2060.503 of the Administrative Code:

The purpose of a DUI evaluation is to conduct an initial screening to obtain significant and relevant information from a DUI offender about the nature and extent of the use of alcohol or other drugs in order to identify the offender’s risk to public safety for the circuit court of venue or the Office of the Secretary of State; and:

1) identify the offender’s risk to public safety for the circuit court of venue or the Office of the Secretary of State; and 2) recommend an initial intervention to the DUI offender and to the circuit court of venue or the Office of the Secretary of State.²

There are four possible risk-level classifications: minimal, moderate, significant, and high risk. The risk level is determined by two categories of criteria: a) information about the person’s DUI arrest record, and more importantly, b) symptoms. The specific criteria are set forth in Title 77 (Public Health), Chapter X (Department of Human Services (DHS)), Part 2060 (Alcoholism and Substance Abuse Treatment and Intervention Licenses), section 2060.503 (DUI Evaluations.). (See table on previous page for the criteria.)

Elsewhere in the Administrative Code, in the section that provides definitions for the Secretary of State, the Code defines each of these terms.⁴ “Minimal Risk” and “Moderate Risk” are defined as a person who does not have any symptoms of substance abuse or dependence. “Significant Risk” is defined as a person who has “other symptoms of abuse.” “High Risk” is defined as a person who has “the required number of symptoms [of substance dependence] within any 12 month period, as defined by the Diagnostic and Statistical Manual of Mental Disorders ….”

Nothing in section 2060 explains how many symptoms is the “required number of symptoms” to justify each risk-level classification. And neither section 1001 (for the Secretary of State) nor section 2060 (for the Department of Human Services) just mentions “symptoms” in general, but both make a distinction between “abuse” symptoms and “dependence” symptoms.

The reason that section 2060, and by reference, section 1001, make a distinction between “abuse” and “dependence” symptoms is because section 2060 of the Code predates the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”).⁵ The DSM-5 was published in 2013 and replaced the DSM-IV, published in 1994.⁶ The introduction of the DSM-5 states that this fifth edition was a “massive undertaking that involved hundreds of people … over a 12 year period.” Section 2060 is outdated; it has not been updated or revised since 2001. The definitions section of section 2060 still mandates that evaluators and treatment providers use the DSM-IV to classify DUI offenders.⁷

The terms “abuse” and “dependence” were meaningful terms under the DSM-IV, which describe two distinct disorders—substance abuse and substance dependence—with specific criteria for each. The DSM-5 integrated the two DSM-IV disorders—substance abuse and substance dependence—into a single disorder called a “substance use disorder” (SUD), with mild, moderate, and severe subclassifications.

Risk level	Criteria
Minimal	No prior conviction or court ordered supervisions for DUI, no prior statutory summary suspensions, and no prior reckless driving conviction reduced from DUI; and a BAC of less than .15 as a result of the most current arrest for DUI; and no other symptoms of substance abuse or dependence.
Moderate	No prior conviction or court ordered supervisions for DUI, no prior statutory summary suspensions, and no prior reckless driving conviction reduced from DUI; and a BAC of .15 to .19 or a refusal of chemical testing as a result of the most current arrest for DUI; and • no other symptoms of substance abuse or dependence.
Significant	One prior conviction or court ordered supervision for DUI, one prior statutory summary suspension, or one prior reckless driving conviction reduced from DUI; and/or a BAC of .20 or higher as a result of the most current arrest for DUI; and/or other symptoms of substance abuse.
High	Symptoms of substance dependence (regardless of driving record); and/or within the 10-year period prior to the date of the most current (third or subsequent) arrest, any combination of two prior convictions or court ordered supervisions for DUI, or prior statutory summary suspensions, or prior reckless driving convictions reduced from DUI, resulting from separate incidents.3

Well, which is it?

The first reason that the Uniform Report is broken is because notwithstanding sections 2060 and 1001 that say the Uniform Report is supposed to still be using the outdated DSM-IV, the Uniform Report does not actually use the DSM-IV to classify DUI offenders, but instead uses the DSM-5. The actual form itself was drafted and produced by the Department of Human Services’ electronic DUI Service Reporting System (eDSRS).⁸Somewhere along the line, eDSRS changed the form. The agency published a User Reference Manual⁹ for the Uniform Report. Page 48 of the manual is a copy of Page 9 of the current Uniform Report form (see Figure 1).

The current version of the Uniform Report clearly directs that the professional evaluators use the DSM-5 and not the DSM-IV to classify substance use disorders, notwithstanding that the Administrative Code still requires the professional evaluators to use the DSM-IV. The DSM-5 contains a list of the 11 potential symptoms of substance use disorders. The Uniform Report form requires the state licensed professional evaluator to identify in paragraph 6.1 the DSM-5 symptoms that the DUI offender previously had experienced. The text of the form states:

Identify any Substance Use Disorder Criteria occurring within a 12 month period. This may be done using the offender’s current presentation or past episode for which the offender is currently being assessed as being in remission. One symptom will result in a Moderate Risk classification. Two or three symptoms will result in a Significant Risk classification. Four or more symptoms will result in a High Risk classification.¹⁰

Implicit in this framework is that zero symptoms will result in a minimal-risk classification.

The most significant reason that the Uniform Report is broken is because this framework is in direct conflict with the DSM-5. The DSM-5 uses different nomenclature. The terms minimal, moderate, significant, and high risk are not DSM-5 terms. Instead, the DSM-5 refers to use disorders, and assigns levels of mild, moderate, and severe:

DSM-5 level	Symptom presence
Mild	The presence of two to three symptoms.
Moderate	The presence of four to five symptoms.
Severe	The presence of six or more symptoms.

And that creates the disconnect between the DHS rule that created the risk-level classifications of minimal, moderate, significant, and high risk in the Uniform Report, and the DSM-5’s substance use disorder classifications of mild, moderate, and severe. As shown in the chart below, the DHS rule ascribes an artificially more severe alcohol or drug problem than the DSM-5 would dictate.

Number of symptoms	Classification under the DHS “rule”	SM-5: Severity of the substance use disorder
0	Minimal risk	No disorder
1	Moderate risk	No disorder
2	Significant risk	Mild use disorder
3	Significant risk	Mild use disorder
4	High risk	Moderate use disorder
5	High risk	Moderate use disorder
6	High risk	Severe use disorder
7	High risk	Severe use disorder
8	High risk	Severe use disorder
9	High risk	Severe use disorder
10	High risk	Severe use disorder
11	High risk	Severe use disorder

The chart demonstrates the following inconsistencies:

• Under the DSM-5, a DUI offender with only one symptom is determined to NOT have a substance use disorder. But the Uniform Report, using the DHS rule, classifies the person with one symptom as a moderate risk.
• Under the DSM-5, a DUI offender with two or three symptoms is determined to have a mild substance use disorder. But the Uniform Report, using the DHS rule, classifies the person with two or three symptoms as a significant risk.
• Under the DSM-5, a DUI offender with four or five symptoms is determined to have a moderate substance use disorder. But the Uniform Report, using the DHS rule, classifies the person with two or three symptom as a high risk.

Finally, it should be noted that the “rule” mentioned above is not found anywhere in the Administrative Code. Essentially, this is an unpublished rule that was created by DHS when the current version of the Uniform Report was published. There is nothing in the Administrative Code that says zero DSM-5 symptoms equals minimal risk, or that one DSM-5 symptom equals moderate risk, or that two or three DSM-5 symptoms equals significant risk, or that four or more DSM-5 symptoms equals high risk.

The rulemaking provision of the Illinois Administrative Procedure Act requires that before a new rule may be adopted, the agency proposing the new rule must publish notice in the Illinois Register.¹¹ This is because administrative rulemaking involves a process where the agency publishes notice of a proposed rule and then the public has an opportunity to comment on the proposed rule. Moreover, before a rule can be formally adopted, it must be reviewed by a bicameral legislative support services agency. Language regarding risk-level classifications was added to the Uniform Report by DHS’s Division of Substance Use Prevention and Recovery in 2014.¹² The division did not add this language to the Uniform Report form following publication of any notice in the Illinois Register. There was no statutory or administrative authority for DHS to take this action; thus, there was no notice and comment period and the rule did not undergo any legislative review.¹³

Notably, there is nothing in the User Manual, the Administrative Code, or the statute illuminating exactly why the division decided to score the risk-level classifications in a manner inconsistent with the DSM-5.

Why this matters

First, a state-created evaluation tool that misclassifies a DUI offender’s substance abuse problem by ascribing an artificially more severe problem means that some DUI offenders are receiving treatment that is potentially clinically inappropriate for their true diagnosis:

• The DUI offender who has only one symptom does not have a substance use disorder under the DSM-5 but is a moderate risk and must complete 10 hours of DUI risk education and 12 hours of early intervention.¹⁴
• The DUI offender who has four or five symptoms has a moderate substance use disorder under the DSM-5 but is a high risk and must complete 75 hours of counseling.¹⁵
• Under the DSM-5, a DUI offender who has four or five symptoms is viewed as having a different disorder than the DUI offender who has six to 11 symptoms. DUI offenders who have a moderate substance use disorder or a severe substance use disorder are considered high risk in the Uniform Report. The DSM-5 says that these DUI offenders have different disorders, yet they are treated the same by the DHS “rule” that is found in the Uniform Report.

The other major problem with this framework is that under the DSM-5, professional counselors no longer use the terms “alcohol dependent,” “alcoholic,” or “addict.” But DHS and the Secretary of State are using outdated terms and citing outdated laws that have since been amended. As noted above, section 2060.103, last updated in 2003, references the DSM-IV to define substance abuse or dependence.¹⁶ And the Statement of Principle and Purpose in section 1001.400(b) of the Administrative Code states as follows:

[T]he Office of the Secretary of State subscribes to the disease concept of alcoholism/chemical dependency, as defined in the Alcoholism and Other Drug Abuse and Dependency Act [20 ILCS 301/1-10] ….¹⁷

Note that section 1001.400(b) was updated in 2021, but 20 ILCS 301/1-10 was amended and revised by P.A. 100-759, § 5, effective Jan. 1, 2019. The statute cited by the Secretary of State that refers to the “disease concept of alcoholism/chemical dependency” even has a new name. The name of the Act is no longer called the Alcoholism and Other Drug Abuse and Dependency Act; it is now called the Substance Use Disorder Act.¹⁸The terms “alcoholic,” “alcoholism,” and “addict” were removed from the statute. The old statute defined alcoholism as:

[A] chronic and progressive disease or illness characterized by preoccupation with and loss of control over the consumption of alcohol, and the use of alcohol despite adverse consequences. Typically, combinations of the following tendencies are also present: periodic or chronic intoxication; physical disability; impaired emotional, occupational or social adjustment; tendency toward relapse; a detrimental effect on the individual, his family and society; psychological dependence; and physical dependence. Alcoholism is also known as addiction to alcohol. Alcoholism is described and further categorized in clinical detail in the DSM and the ICD.¹⁹

Of course, that reference to the DSM was a reference to the old DSM-IV and not the DSM-5. The current statute now defines substance use disorder instead.²⁰

Fixing the Uniform Report

The solution to this problem is for DHS to rewrite section 2060 of the Administrative Code and for the Secretary of State to rewrite section 1001 of the Administrative Code bringing those code sections in line with the current diagnostic criteria using the latest version of the DSM-5. The Uniform Report should not classify DUI offenders as being minimal, moderate, significant, or high risk. They should classify substance use disorders as mild, moderate, or severe.

This article makes no recommendations as to the appropriate “corresponding intervention” that should be recommended for DUI offenders once the determination of the level of substance use disorder is made. Such a determination should be made after consultation with practitioners in the field, including probation officers, counselors, social workers, and the lawyers who interact with DUI offenders on a personal level.

Advice for the practitioner

Pending any changes in the rules or statutes, there are opportunities for the lawyer to help clients overcome flaws in the system and ensure that clients are not misclassified with an artificially more severe drug or alcohol problem than appropriate.

Whether a client has or does not have a particular symptom is not always clear and unmistakable. The DSM-5 states that the clinician should obtain a “careful clinical history and concise summary of the social, psychological, and biological factors” and that “it is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis.”²¹ More importantly, the DSM-5 recognizes that this is a gray area, and whether a DUI offender has or does not have a particular symptom is going to depend on clinical judgment on whether the factors, signs, and symptoms “exceed normal ranges.”²²

Given that, to ensure that a client obtains the most accurate assessment, the lawyer representing the DUI offender first needs to become familiar with all 11 DSM-5 symptoms so that the lawyer can help educate the client. The client will obtain a better evaluation if they understand the terminology prior to their appointment with the evaluator. Second, the lawyer should attempt to become familiar with local counselors and determine which ones are skilled at using clinical judgment and which ones simply “check off the symptoms.” Some clinicians have a reputation for over-assessing DUI offenders. It should be remembered that clinicians charge a fee for their treatment; clinicians have a financial incentive to require more hours of treatment. A higher risk level means that the client will be required to complete more treatment hours.

A review of the text in the DSM-5 shows the importance of understanding the nuances in the terminology. For example, the first symptom on the list is whether the substance “is often taken in larger amounts or over a longer period than was intended.” The first key word is “intended.” It is not uncommon for a DUI offender to say to themselves, “My blood alcohol content was over the legal limit. I am a good person and, surely, I didn’t intend to drive drunk; therefore, I must have consumed more alcohol than I intended.” Or the DUI offender might say, “This is my second DUI, and I know better than to drive drunk, so I must have consumed more than I intended.” But the DSM-5 counsels that this symptom is only to be ascribed if it is evidence of “impaired control.”²³ There are cognitive and behavioral factors to consider. Until a DUI offender has made a conscious decision to set limits and intends to limit himself or herself to a certain amount of drinks, or intends to limit his or her drinking to a certain amount of time, it cannot be said that the DUI offender consumed more or longer than intended. And the second key word is “often.” The text of the DSM-5 does not specifically say how often is too often, but the DSM-5 counsels that “the essential feature of a substance use disorder is a cluster of cognitive, behavioral and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.”²⁴ A clinician with a financial incentive to require more treatment hours might be tempted to find an insignificantly small or infrequent problem to be highly significant.

As a second example, the ninth symptom on the list is whether the substance use “is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.” The key word is “knowledge.” It is not enough for the clinician to note that the DUI offender drank despite having liver disease or drank despite taking medication for depression where the warning label advised against drinking. The DSM-5 counsels that the “key issue is not the existence of the problem, but rather the individual’s failure to abstain despite the difficulty it is causing.”²⁵ Unless the DUI offender is educated enough to know that his or her liver disease is caused by overdrinking or knows that his or her depression is getting worse because of overdrinking, this symptom is not to be indicated. A fair clinician should not “check off the symptom” until confirming that the DUI offender appreciated his or her particular health risk, and then continued to drink despite awareness of the risk.

At the extremes, virtually all clinicians should agree. For example, when a DUI offender who stops drinking then endures the classic symptoms of delirium tremens (confusion, shaking, shivering, irregular heart rate, etc.), no competent clinician would say that the DUI offender did not experience DSM-5 symptom 11: withdrawal. But even fair-minded counselors will not always agree on where to draw the line between those physical signs and symptoms that are within the normal range and those that exceed the normal range. This is because “the boundaries between many disorder ‘categories’ are more fluid … than the DSM-IV recognized”; the boundaries are not always well-defined; and “many, if not most, disorders [are] on a spectrum.”²⁶ This is not to suggest that a lawyer should substitute his or her judgment in place of the clinician. Instead, this is to suggest that a lawyer should become familiar enough with the DSM-5 and should know enough about his or her client to be able identify obvious errors.

Finally, the lawyer representing the DUI offender should advise the client to carefully read the Uniform Report before signing it, and then the lawyer should also carefully review the Uniform Report for accuracy before a sentence is imposed. The DUI offender who signs the Uniform Report is verifying that it is accurate, but the Administrative Code provides that the DUI offender is not required to sign the Uniform Report.²⁷ Even if the DUI offender has signed the Uniform Report, the DUI offender still has a right to seek a second opinion—provided that the first evaluation is disclosed.²⁸ If the second evaluation results in a lower risk-level classification, a lawyer should be prepared to advocate on behalf of the client and demonstrate that the second evaluation is based on more complete and accurate information and therefore resulted in a more appropriate risk-level classification. We owe our clients at least that much.