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Markowski v. Edgar

OPINION FILED DECEMBER 31, 1986.

THOMAS MARKOWSKI, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. George A. Higgins, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Thomas Markowski filed a petition with defendant, the Secretary of State, requesting a restricted driving permit (permit) following the suspension of his driving privileges for driving under the influence of alcohol. Defendant denied plaintiff's request, and plaintiff sought administrative review of this decision in the circuit court of Cook County. After a hearing the circuit court reversed defendant's decision and directed defendant to issue plaintiff the permit requested. Defendant now appeals from that order contending that the denial of plaintiff's request was proper and not contrary to the manifest weight of the evidence.

The record discloses that plaintiff is 31 years of age and has been employed as a United Parcel Service (UPS) driver for seven years. While he was vacationing in California in 1984, he was convicted of driving under the influence of intoxicating liquor. As a result the California court imposed a 90-day restriction on his driving privileges which limited his driving to employment-related activity and transportation to and from work. On November 6, 1984, defendant revoked plaintiff's driving privileges based upon that conviction, and after plaintiff was convicted of violating a "no-turn" sign in January 1985, defendant notified him that his suspension had been extended for another year.

Thereafter plaintiff applied for a permit and a hearing on his application was held on June 6, 1985. Plaintiff was represented by counsel, and, at the outset of the hearing, plaintiff's driving record, alcohol assessments, and remedial education summaries, as well as other supporting documentation submitted by plaintiff, were admitted into evidence.

Plaintiff then detailed the circumstances surrounding the California drunk-driving conviction which led to his present dilemma. He explained that on one afternoon during his vacation, he and a friend began drinking about 4 p.m., and in the 7-hour period which followed, he consumed 10 beers and 5 shots of whiskey. He then proceeded to another bar, where he drank three more beers and two more shots. When he attempted to drive back to his hotel, he became tired and disoriented and pulled over to the side of the road to sleep and refresh himself. About an hour later he got back on the road, which was not well lit, drove slowly, and was stopped by a citizen who called the police. He scored a .19% alcohol on the breathalyzer test that was administered to him and subsequently entered a plea of guilty to the charge through an attorney.

Plaintiff testified that prior to that incident he had been arrested for driving while under the influence of liquor on January 2, 1981, but that charge was reduced to reckless driving. He also stated that he had not received any traffic citations in the seven years he had driven for UPS, although he had two accidents termed "avoidable" by the company which resulted in minor vehicle damage. He further stated that he had not missed any work in the last three years and had learned a valuable lesson from this experience.

As to his present drinking habits, plaintiff explained that he no longer drank whiskey and that he had cut down on his consumption of alcoholic beverages considerably; he has restricted himself to drinking three beers on Friday nights and an occasional glass of wine at a family dinner. He explained that he started drinking when he was about 17 years of age. At that time his parents were in the midst of a divorce and he became distressed over the situation; now, however, he believed that he could handle stress in more meaningful ways without resorting to alcohol. He further stated that he had never been diagnosed as an alcoholic and acknowledged that his tolerance of alcohol has subsided over the years so that now the consumption of four beers made him "wobbly."

Under examination by his own counsel, defendant admitted that the last time he became intoxicated was at a friend's wedding, which was held on May 18, 1985; he added, however, that he did not drive on that occasion. He also stated that he did not violate the terms of the suspension of his driving privileges once he became aware of its imposition in March 1985 and explained that prior to that time he was under the impression that his license was unrestricted after the California limitations ended in November 1984. When he was notified of the Illinois suspension, he immediately informed his employer of the situation, and the company advised him that if he was unable to obtain a hardship permit he would be terminated. He also stated that he had to postpone his wedding plans because of the uncertainty of his employment situation.

Plaintiff submitted an updated alcohol assessment report prepared by his alcohol counselor indicating that he showed no evidence of physical dependency on alcohol, that he seemed to have remediated his past drinking experience, and that he has not drunk to the point of intoxication in six months. When queried about this latter point, he admitted that he did not inform his counselor of his indiscretion at the wedding, which was held just prior to their meeting, because he did not think it was important. He also admitted that he had experimented with cocaine and marijuana in the past but was not currently using either of these substances and that he did not follow up on the outpatient counseling recommended to him because he did not believe it was necessary.

Plaintiff then introduced a letter from his fiancee in which she stated that plaintiff's behavior did not indicate that he had a drinking problem, and a letter from a fellow driver, concurred in by 17 others, which recommended that plaintiff's driving privileges be restored. Both were admitted into evidence.

Mike Michaels, the keeper of the records and benefits administration for UPS, verified plaintiff's good work and attendance record and requested that defendant issue a hardship license to plaintiff. He explained the training and annual evaluation procedures which are set up within the company for all drivers and reported that plaintiff had passed all of them. He also stated that he had just advised plaintiff of the counseling services that are available to him through the company and that no other job would be offered to plaintiff if his driving privileges were not reinstated.

Plaintiff's fiancee, Adelaide Reiner, testified that she and plaintiff had been engaged for four years and that although he had a tendency to overdrink four years ago, she did not consider it a problem and has observed that he now confined himself to drinking about three beers on the weekend. She could not remember the last time he was intoxicated and did not recall that he behaved differently at the wedding they attended on May 18, 1985. She also stated that she has never been concerned about plaintiff's past drinking and did not say anything to the contrary to the alcohol counselor; in fact, she stated that she had not been interviewed by him even though the assessment form indicated otherwise.

On the basis of this evidence, the hearing officer recommended that plaintiff's request for a permit be denied. In so finding the hearing officer concluded that the evidence showed that plaintiff's past use of alcohol caused specific identifiable problems; however, the nature and extent of his use of alcohol was not established. The hearing officer also noted the conflicting evidence in the record which prevented her from making a determination as to the nature and extent of plaintiff's use or abuse of alcohol and that plaintiff had therefore failed to carry his burden of proving that he would be a safe and responsible driver who would not endanger the public safety and welfare if a permit were issued to him. The hearing officer also concluded that plaintiff's past driving record, which consisted of two separate arrests for driving under the influence, revealed a disregard for the public safety and traffic laws and currently presented an unacceptable risk to the public safety and welfare.

The findings and recommendation of the hearing officer were adopted by defendant, and on August 5, 1985, defendant entered an order denying plaintiff's request for the issuance of a permit. Plaintiff sought administrative review of this order, and on November 7, 1985, the court found that there was no evidence in the record to indicate that plaintiff would not be a safe and responsible driver while restricted to work-related activities, and that he would suffer undue hardship by his loss of employment if it were not granted. The court also found that plaintiff did not present a ...


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