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Shanahan v. Edgar

OPINION FILED NOVEMBER 13, 1986.

DANIEL SHANAHAN, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:

The Secretary of State (the Secretary) appeals from the order of the circuit court of Cook County which held, upon administrative review, that the Secretary's decision to deny reinstatement of driving privileges or a restricted driving permit (RDP) to Daniel Shanahan (Shanahan) was against the manifest weight of the evidence. Based upon this determination, the trial court ordered the Secretary to issue Shanahan a restricted driving permit (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 6-205(c)) and to reinstate Shanahan's driving privileges without restriction (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 6-208(b)). The Secretary appeals.

The Secretary presents two grounds for reversal of the trial court's order. First, the Secretary contends that Shanahan is ineligible for full reinstatement of his driving privileges as a matter of law because of the Secretary's "five-year rule." The Secretary maintains that under this rule, reinstatement of a driver's license is impermissible where the applicant has received two or more convictions of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501; see also Ill. Rev. Stat. 1983, ch. 95 1/2, par. 6-205(a) (revocation of license)), until at least five years have elapsed since the date of the latest DUI conviction. The Secretary also argues that the trial court's decision was erroneous, because Shanahan's prior convictions of DUI, his driving record, and evidence of his continued alcohol consumption, establish that the reinstatement of his driving privileges or the issuance of an RDP would create an unreasonable risk to public safety and welfare on the highway.

Based upon our review of the record, we conclude that the Secretary's decision was in error. Accordingly, we affirm the portion of the trial court's order which found the Secretary's determination to be against the manifest weight of the evidence. Furthermore, we conclude that the Secretary's per se five-year rule is in excess of the Secretary's statutory authority; in view of the length of time which has elapsed since Shanahan's request for either an RDP or reinstatement of his driving privileges, we vacate the orders entered below and remand the matter to the Secretary for further proceedings on Shanahan's application.

BACKGROUND

Shanahan's driver's license was revoked by the Secretary of State on June 8, 1981, on the ground that he had been convicted two or more times of DUI. (See Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(a)(2).) The record reflects that Shanahan was arrested for DUI on March 18, 1978, January 28, 1979, and March 26, 1981, and that these last two arrests resulted in DUI convictions on April 17, 1979, and April 13, 1981.

In September 1983, Shanahan requested that the Secretary of State hold a formal hearing for the purpose of his application for, first, an RDP or, second, for either full reinstatement of his driving privileges or an RDP. The requested formal hearing was held in October 1983.

The hearing officer found that Shanahan's driving record included the following. In the years 1975 to 1976 (when Shanahan was 21 to 22 years old) he was convicted for improper lane usage (August 6, 1975), speeding (October 27, 1975), collision involving damage to vehicles only, failure to stop, exchange information and make a report (January 9, 1976) and improper lane usage (January 20, 1976). The Secretary imposed a discretionary suspension for three or more moving violations within a 12-month period, which was entered on June 23, 1976, and terminated on September 23, 1976. Shanahan was also issued a probationary license from June 30, 1976, to October 3, 1976.

On September 23, 1977, Shanahan was convicted for disregarding an official traffic-control device. Almost six months later, on March 18, 1978, he was arrested for DUI; an implied-consent suspension was entered against him on June 5, 1978, terminating on September 5, 1978. His March 18 arrest also resulted in his conviction for failure to give a stop or turn signal on April 11, 1978. Shanahan was later issued an RDP from June 30, 1978, to October 5, 1978.

On January 28, 1979, Shanahan was arrested for DUI; this resulted in a DUI conviction on April 17, 1979. He had previously been arrested on December 22, 1978; this arrest resulted in a conviction for improper lane usage on March 22, 1979. An order revoking his driver's license and driving privileges was entered effective May 16, 1979, pursuant to section 6-205(a)(2) of the Illinois Vehicle Code (the Vehicle Code) (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 6-205(a)(2)). Thereafter he was issued an RDP, from October 29, 1979, to October 29, 1980.

On March 26, 1981, Shanahan was arrested for DUI. He was convicted for DUI and for driving while license revoked on April 13. An implied-consent suspension was entered against him on June 28, 1981, and terminated on December 28, 1981. An order revoking Shanahan's driver's license and driving privileges was entered effective June 8, 1981, pursuant to section 6-205(a)(2) of the Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(a)(2)).

At the hearing on his application for reinstatement or an RDP, Shanahan presented the evaluation report of William Downs, a certified alcohol counselor employed by Ingalls Memorial Hospital's Alcoholism Treatment Center. The report, provided on an alcohol/drug assessment form promulgated by the Secretary, was dated September 15, 1983. In it the evaluator observed that Shanahan's drinking pattern increased after high school. The report noted that during this period, Shanahan's alcohol consumption occurred two to three times per week at an average of 2 to 10 beers per episode. The evaluator observed in the report that Shanahan "state[d] there were times when he would drink more and there was some intermittent loss of control." The report noted that Shanahan "receive[d] two DUI's, the first being in February 1979, and the second March, 1981." The record indicates that Shanahan was born in December 1954. Thus the period to which the evaluation referred as Shanahan's "increased drinking pattern after high school" occurred when Shanahan was approximately 18 to 26 years of age.

The evaluation report commented upon Shanahan's changed behavior in the two years prior to the evaluation in 1983. The report stated that during the time frame of 1981 to 1983, Shanahan's "drinking pattern has consisted of consuming a glass of beer or wine about once every two weeks. Usually this is at home watching [television]." The evaluator noted that Shanahan "denies any blackouts, increase in tolerance or loss of control." The report indicated no identification of a current alcohol or drug problem. It also indicated that Shanahan had undergone an objective test for alcohol abuse specified as MAST [the Michigan Alcoholism Screening Test], although no results of this test were given, or requested, in the evaluation report format.

The evaluator's report also observed that Shanahan entered Ingalls Memorial Hospital's Intensive Outpatient Counseling Program in April 1981. The four-week program's purpose "was to provide an in-depth assessment of the extent of [Shanahan's] alcohol problem and to provide an in-depth education about alcoholism." The evaluator noted that Shanahan "participated in all activities and completed the program in May 1981."

In his report, the evaluator also stated that it was his impression that Shanahan's drinking pattern, prior to the April 1981 counseling program, "indicated symptoms of alcoholism." The evaluator observed that since April 1981, Shanahan "appears to have taken a more responsible attitude toward his past problem. It does not appear he has a current alcohol problem." The evaluator ...


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