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Rigney v. Edgar

OPINION FILED JULY 31, 1985.

THOMAS A. RIGNEY, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 16, 1985.

Plaintiff, Thomas Rigney, brought this action for administrative review of a decision by defendant, Secretary of State, which denied plaintiff's petition to rescind the suspension of his driver's license. The trial court set aside defendant's decision and ordered him to rescind the suspension order. On appeal, defendant contends that acceptance of plaintiff's plea of nolo contendere by a Georgia court to a charge of driving while under the influence of alcohol (DUI) is grounds for the suspension of plaintiff's Illinois driver's license.

Plaintiff, an Illinois licensed driver, was charged in the State of Georgia with operating a motor vehicle while under the influence of alcohol on May 7, 1982. The Georgia traffic citation reported that plaintiff's breath test resulted in a finding of .13% of blood alcohol content. Plaintiff was advised by his Georgia attorney that Georgia allowed first offenders in DUI cases to offer a plea of nolo contendere. Plaintiff was further informed that acceptance of such a plea under the circumstances would not result in a conviction on the charge nor a suspension or revocation of his driver's license, and did not constitute an admission of guilt under Georgia law. On July 20, 1982, plaintiff entered his nolo contendere plea, and the plea was accepted by the municipal court of Peachtree, Georgia. Plaintiff was fined $400 and given a 60-day suspended jail term. Subsequently, Georgia notified defendant of plaintiff's offense and the court disposition, pursuant to the Driver License Compact. Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-702.

On August 28, 1982, plaintiff received a notice of suspension from defendant, which advised plaintiff that his Illinois driver's license would be suspended for one year, effective September 1, 1982. The suspension order was based on plaintiff's "having been convicted outside the State of Illinois for the offense of operating a motor vehicle while under the influence of an intoxicant." Plaintiff made a timely request for a hearing to rescind defendant's order of suspension, and also filed a complaint for administrative review and other relief in the trial court. On September 2, 1982, the trial court stayed the suspension order pending a final order by defendant in an administrative hearing.

The hearing was conducted before defendant's hearing officer on October 27, 1982. Defendant offered in evidence plaintiff's request for a hearing, the notice setting the hearing, and defendant's abstract of plaintiff's driving record. Plaintiff introduced the affidavit of his Georgia attorney regarding the advice about the effect of a nolo contendere plea. Plaintiff also introduced the affidavit of a Georgia municipal court judge stating that under Georgia law an accepted plea of nolo contendere did not constitute a conviction and would not result in suspension or revocation of a first offender's driver's license.

On November 17, 1982, plaintiff's petition to rescind defendant's order of suspension was denied. Defendant's hearing officer found that "petitioner was convicted of driving under the influence of alcohol by the State of Georgia and such conviction was reported by the State of Georgia and properly entered by the Secretary of State of the State of Illinois on the petitioner's Illinois driving record."

Thereafter, plaintiff filed an amended complaint in the trial court alleging that defendant failed to support his findings with evidence presented at the hearing and failed to prove a "conviction" warranting the license suspension. As an answer, defendant submitted a certified copy of the administrative hearing file. Included within the file was a copy of the Georgia traffic citation and court disposition, which was not introduced into evidence. On April 23, 1984, the trial court set aside defendant's order denying plaintiff's petition to rescind the order of suspension. The trial court also reinstated plaintiff's driving privileges.

Defendant contends that plaintiff was convicted in Georgia of driving while under the influence of alcohol and that such conviction is grounds for suspending plaintiff's Illinois driver's license, pursuant to the Illinois Driver Licensing Law (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-100 et seq.). Section 6-206(a)(6) of the Illinois Driver Licensing Law provides:

"The Secretary of State is authorized to suspend or revoke the license * * * of any person without preliminary hearing upon a showing by his records or other sufficient evidence that such person:

(6) Has been lawfully convicted of an offense in another State which if committed within this State would be grounds for suspension or revocation."

In Illinois, conviction of driving while under the influence of alcohol results in mandatory one-year revocation of the offender's license. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(a)(2).) For the purposes of the Act, conviction means "a final adjudication of guilty by a court of competent jurisdiction either after a bench trial, trial by jury, plea of guilty, order of forfeiture, or default." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-100.

The Act is also subject to the Driver License Compact (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 6-700 to 6-708), which requires the State's licensing authority to report each conviction of a person from another State occurring within its jurisdiction to the licensing authority of the licensee's home State. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-702.) Pursuant to section 6-703, the effect of an out-of-State conviction is as follows:

"The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported * * * as it would if such conduct had ...


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