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Breiner v. Edgar

OPINION FILED FEBRUARY 20, 1985.

DANIEL J. BREINER, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On July 1, 1983, Jim Edgar, Secretary of State, State of Illinois (Secretary) entered an order denying a petition filed by plaintiff, Daniel Breiner, requesting either the reinstatement of his driving privileges or the issuance of a restricted driving permit. Pursuant to the administrative review provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.), plaintiff filed a complaint in the circuit court of Sangamon County. On January 6, 1984, the circuit court entered an order determining that the Secretary's decision was contrary to the manifest weight of the evidence and ordering the Secretary to reinstate plaintiff's driving privileges. The Secretary has appealed. We conclude that (1) the Secretary's denial of full driving privileges should be upheld; but (2) the Secretary should have issued a restricted driving permit.

The record indicates that on February 28, 1983, plaintiff filed a written request for reinstatement of his driving privileges. The following evidence was introduced at administrative proceedings conducted by a hearing officer. Certain information contained in plaintiff's driver's license file maintained by the Secretary indicated that plaintiff was (1) born on December 18, 1960; (2) issued an Illinois driver's license on July 29, 1978; (3) convicted on May 16, 1979, for driving too fast for road conditions; and (4) convicted on April 29, 1980, for the offense of reckless conduct (Ill. Rev. Stat. 1979, ch. 38, par. 12-5). This conviction was based upon plaintiff's involvement in a two-vehicle collision in which two individuals were fatally injured.

The information introduced at the hearing further indicated that pursuant to section 6-205(a)(10) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 6-205(a)(10)), plaintiff's driver's license was revoked on May 22, 1980, following his conviction of the offense of reckless conduct arising from the use of a motor vehicle.

Plaintiff testified at the hearing as follows. On the evening of the collision, plaintiff, who lived in Albers, and three of his friends drove in plaintiff's car to a tavern located in New Baden. They remained in the bar from approximately 8 p.m. until midnight, and plaintiff consumed six or seven 12 oz. beers. After leaving the bar, plaintiff and his friends got in the plaintiff's car. As plaintiff was driving his friends home, plaintiff was involved in a two-vehicle collision. However, plaintiff stated that he did not remember any of the details concerning the accident because he "blacked out."

Plaintiff further testified that (1) at the time of the hearing, he was 22 years old, lived at home with his parents, and drank two or three beers per week; and (2) from the date of the accident, September 8, 1979, until the day his driver's license was revoked, May 22, 1980, he was given no traffic citations and was involved in no accidents. Plaintiff also stated that he believed he would be a safe driver and would be careful and cautious and follow all the rules of the road.

Plaintiff's mother testified that (1) she had observed defendant driver after the collision and before his driver's license was revoked and during this time plaintiff was always cautious and careful; and (2) since the collision, he keeps a "lookout" even as a passenger.

An alcohol evaluation report indicated that although he regularly consumed beer, plaintiff did not have an "alcohol problem."

REINSTATEMENT OF FULL DRIVING PRIVILEGES

Section 6-208(b) of the Code sets forth the standard for determining whether an individual's full driving privileges should be reinstated. Section 6-208(b) provides, in part:

"[T]he Secretary of State shall not issue such license unless and until he is satisfied after investigation of such person that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-208(b).

The Secretary, pursuant to section 2-104(b) of the Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 2-104(b)), has promulgated certain regulations which have the force and effect of law. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 387 N.E.2d 320.) One such regulation, not in effect at the time of the hearings but in effect when the hearing officer made the findings and recommendations, provides that in order to reinstate an individual's driving privileges, the Secretary must determine:

"[T]he public health and safety must not be endangered by the reinstatement of the applicant's drivers license. The applicant, if restored to driving privileges, must operate a motor vehicle safely so as not to be a danger to himself or herself or other drivers on the road. The mere passage of time since the date of revocation is not sufficient evidence." 7 Ill. Reg. 7501, 7527 (1983).

The Secretary maintains that he properly denied plaintiff's request for reinstatement of full driving privileges because (1) plaintiff was not a credible witness; and (2) plaintiff's ...


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