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02/02/89 Todd R. Mills, v. Jim Edgar

February 2, 1989

TODD R. MILLS, PLAINTIFF-APPELLEE

v.

JIM EDGAR, STATE OF ILLINOIS, SECRETARY OF STATE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

534 N.E.2d 187, 178 Ill. App. 3d 1054, 128 Ill. Dec. 167 1989.IL.124

Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Plaintiff Todd R. Mills sought review in the circuit court of Sangamon County of an administrative decision by defendant Jim Edgar, Secretary of State, denying plaintiff's petition for rescission of its previous order revoking plaintiff's driver's license. The circuit court reversed defendant's decision, finding it was contrary to law, and subsequently ordered defendant to rescind the revocation of plaintiff's driver's license. Defendant appeals from that decision. We reverse.

The evidence in this matter indicates that, on July 27, 1987, the circuit court of Lake County in Leadville, Colorado, entered judgment on plaintiff's plea of guilty to the offense of driving while ability impaired. (Colo. Rev. Stat. § 42-4-1202(1)(b) (1984).) Upon learning of this conviction, the defendant entered an order revoking plaintiff's Illinois driver's license pursuant to section 6-205(d) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-205(d)). That section authorizes defendant to revoke the driving privileges of any person under the age of 21 who is convicted of driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.) Plaintiff petitioned defendant to rescind that order, but defendant denied his request as aforementioned.

By enactment of article VII of chapter 6 of the Code, Illinois entered into an agreement with various States creating a "driver license compact." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-700 et seq.) Through this compact, the licensing authority of a party State notifies the licensing authority of a home State whenever a licensee from the home State receives certain types of convictions for motor vehicle offenses in the party State. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-702.) Colorado is also a party to this compact. Colo. Rev. Stat. § 24- 60-1101 et seq. (1988).

For purposes of revoking a driver's license, section 6-703(a) of the Code mandates the licensing authority in a home State to "give the same effect to the conduct reported [by a party State] . . . as it would if such conduct had occurred in the home state," in regard to various criminal convictions, including those for "[driving] a motor vehicle while under the influence of intoxicating liquor." (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-703(a)(2).) Section 6-703(c) of the Code states:

"If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in paragraph (a) of this Section, such party state shall construe the denominations and descriptions appearing in paragraph (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provision as may be necessary to ensure that full force and effect is given to this Section." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-703(c).

We conclude that the offense of driving while ability impaired, for which plaintiff was convicted in Colorado (Colo. Rev. Stat. § 42 -- 4 -- 1202(1)(b) (1984)), results from conduct "substantially similar" to conduct which would constitute driving while "under the influence of alcohol" as prohibited by section 11 -- 501(a)(2) of the Code. We reach this Conclusion by a comparison of the statutory format of the two States in regard to penal provisions for persons who drive after having consumed alcoholic beverages.

Illinois law provides for a single offense of driving under the influence of alcohol or other drugs. Absent exceptional aggravating circumstances not applicable here, the offense is a misdemeanor. A person commits the offense when he ingests alcohol and drives with an alcohol concentration in blood or breath of 0.10 or more of described units (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)) or when he drives while "[under] the influence of alcohol" (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)).

Colorado law, on the other hand, recognizes three offenses involving driving after consuming alcohol: (1) driving under the influence; (2) driving while impaired; and (3) driving with excessive alcoholic content. (Colo. Rev. Stat. §§ 42 -- 4 -- 1202(1)(a), (1)(b), (1.5)(a) (1984).) All are misdemeanors. The first occurs when a person drives "under the influence of intoxicating liquor." (Colo. Rev. Stat. § 42 -- 4 -- 1202(1)(a) (1984).) The second offense occurs when a person drives "while such person's ability to operate a vehicle is impaired by the consumption of alcohol." (Emphasis added.) (Colo. Rev. Stat. § 42 -- 4 -- 1202(1)(b) (1984).) The final offense occurs when "the amount of alcohol in [the blood of a person driving] is 0.15 or more." Colo. Rev. Stat. § 42 -- 4 -- 1202(1.5)(a) (1984).

The Colorado Supreme Court has concluded that the standard of proof for the offense of driving under the influence is impairment to a " substantial degree " (emphasis added) (Thompson v. Colorado (1973), 181 Colo. 194, 201-02, 510 P.2d 311, 314), while the standard of proof for the offense of driving while impaired is impairment to the " slightest degree " (emphasis added) (Thompson, 181 Colo. at 199, 510 P.2d at 313). An Illinois pattern jury instruction defines the term "under the influence of intoxicating liquor" as follows: "A person is under the influence of intoxicating liquor when as a result of drinking any amount of intoxicating liquor his mental and/or physical faculties ...


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