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07/30/87 John T. Fitzpatrick, v. Jim Edgar

July 30, 1987

JOHN T. FITZPATRICK, PLAINTIFF-APPELLANT

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

512 N.E.2d 56, 158 Ill. App. 3d 966, 111 Ill. Dec. 152 1987.IL.1091

Appeal from the Circuit Court of Sangamon County; the Hon. Philip Schickedanz, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND, J., concurs. JUSTICE McCULLOUGH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff John T. Fitzpatrick appeals from a Sangamon County circuit court order upholding the defendant Secretary of State's (Secretary's) decision refusing to reinstate plaintiff's driving privileges. We affirm.

The Secretary revoked plaintiff's driving privileges effective May 29, 1982, pursuant to his authority under section 6-205(a)(2) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(a)(2).) This revocation followed plaintiff's conviction for driving under the influence of alcohol . Plaintiff petitioned the Secretary to reinstate his driving privileges, or alternatively, to issue him a restricted driving permit .

A hearing was held on this petition September 26, 1985. The hearing officer made findings of fact, which are generally not disputed by the plaintiff, and recommended the Secretary deny plaintiff's request for reinstatement of driving privileges or an RDP. The Secretary followed this recommendation and denied plaintiff's request for reinstatement. Plaintiff unsuccessfully sought to have the Secretary's decision overturned by the Sangamon County circuit court. On appeal, plaintiff again seeks to overturn the Secretary's decision because he alleges it is arbitrary, capricious, and against the manifest weight of the evidence.

Plaintiff's driver's license was suspended in 1976 because he refused to submit to a breath test following his arrest for DUI. Plaintiff also received court supervision following an arrest for DUI in 1979. Plaintiff's record shows additional convictions for improper lane usage in 1976 and 1977, and for driving the wrong way on a one-way street in 1978. Prior to at least one of the improper lane usage offenses, plaintiff had consumed alcohol.

Plaintiff, 53 years old at the time of the hearing, began drinking alcohol at age 19, and became an abusive drinker at age 36. Plaintiff admitted he was an alcoholic, but he had abstained from alcohol since July 1983. His primary motivation to end the use of alcohol was his doctor's advice he would incur serious health risks if he continued to imbibe. The hearing officer noted plaintiff had begun attending Alcoholics Anonymous two or three times a week approximately three months prior to the hearing. The hearing officer was of the impression plaintiff had initially been reluctant to attend AA and plaintiff had begun attending in order to improve the chances of regaining his driving privileges.

The hearing officer noted favorably the number of letters sent on plaintiff's behalf from people who had known him for a substantial length of time and who had observed positive changes in the plaintiff's character since he had ceased drinking. These letters came from neighbors, plaintiff's physician, and his dentist. The hearing officer also observed the plaintiff's favorable assessment from a certified alcohol counselor, who found plaintiff to be an alcoholic in remission and did not recommend any further treatment. Based upon these facts, the hearing officer concluded the plaintiff was a recovering alcoholic, but that he had failed to carry his burden of proving he would be a safe and responsible driver. Specifically, the hearing officer noted the plaintiff had only recently begun participating in a support group to help him continue abstaining from alcohol.

Upon review, the findings and Conclusions of an administrative agency must be considered prima facie true and correct. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 492 N.E.2d 929.) Courts may not interfere with an agency's exercise of its discretionary authority unless that power is exercised in an arbitrary and capricious manner, or the administrative decision is against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) This court will not find the Secretary's denial of driving privileges to be against the manifest weight of the evidence unless, "after viewing the evidence in the light most favorable to the Secretary, . . . no rational trier of fact could have agreed with the Secretary's decision." Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929, 933.

Plaintiff concedes on appeal he does not qualify for an RDP because he has failed to demonstrate any hardship which would permit issuance of an RDP. However, plaintiff contends the Secretary's decision to not reinstate his driving privileges was against the manifest weight of the evidence. Plaintiff points to two years of documented abstinence from alcohol preceding the hearing, successful completion of an alcohol education course, his favorable assessment from an alcoholism counselor, and the counselor's recommendation that plaintiff not receive further treatment, as facts requiring the Secretary to reinstate plaintiff's driving privileges.

The plaintiff has a 31-year drinking history with 14 years of abusive drinking. His work as a bartender provides him tempting access to alcohol. Over the last decade he has had four alcohol-related driving offenses, and two of those are for DUI. He waited almost two years to begin AA after he stopped drinking. Several years of abstinence coupled with ...


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