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12/28/89 Gregory J. Britt, v. Jim Edgar

December 28, 1989

GREGORY J. BRITT, PLAINTIFF-APPELLEE

v.

JIM EDGAR, SECRETARY OF STATE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

548 N.E.2d 826, 192 Ill. App. 3d 469, 139 Ill. Dec. 441 1989.IL.2047

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and STEIGMANN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant, the Secretary of State (Secretary), appeals an order of the circuit court of Sangamon County which reversed its denial of plaintiff's request for a restricted driving permit . The circuit court affirmed the Secretary's denial of plaintiff's request for restoration of full driving privileges. It ordered the Secretary to issue plaintiff an RDP, but stayed the order pending appeal. The Secretary appeals, contending the circuit court erred in finding its denial of an RDP was contrary to the manifest weight of the evidence. Plaintiff has not filed a cross-appeal.

We affirm.

The Secretary revoked plaintiff's driving privileges effective June 3, 1982, pursuant to its authority under section 6-205(a)(2) of the Illinois Vehicle Code (Code). (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6-205(a)(2).) This revocation followed plaintiff's second conviction for driving under the influence of alcohol . (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.) On April 8, 1988, plaintiff petitioned the Secretary for reinstatement of full driving privileges or, alternatively, issuance of an RDP. A hearing on the petition was held on May 20, 1988. The Secretary introduced plaintiff's driving record. Beginning April 1975 plaintiff, then a teenager, in a two-year period incurred convictions for speeding, driving too fast for conditions (two violations), no stoplights, and reckless driving. On May 9, 1977, he was convicted of a November 30, 1976, DUI. He had an additional speeding violation, July 29, 1979, and on March 30, 1982, was convicted of DUI December 4, 1981. His license was revoked on June 3, 1982. He has not had a license to drive since that date.

Plaintiff was 32 years old at the time of the hearing. No injuries had occurred in connection with his DUI offenses. He had never been convicted of driving while his license was revoked or suspended. Plaintiff testified he lived with his mother. He worked for a heating and air-conditioning firm. In 1981, he worked as a laborer in a toxic chemical plant. He was divorced in June of 1985. He last consumed alcoholic beverages in 1984. Plaintiff stated he did not believe he presently had a drinking problem. He did not sneak drinks or "fall off the wagon." He stopped consuming alcohol because of his occupation. Plaintiff believed one could not do heating and air-conditioning repair work, which necessitated being on 24-hour call, and consume alcohol. He also believed he would not start drinking again after restoration of his driving privileges because he had a more positive attitude about himself and was more mature. Plaintiff stated his employer drives him to emergency repair calls. He needs a driving permit to drive a service vehicle.

Plaintiff further stated that he completed an alcohol and substance abuse evaluation in February 1988. He followed the program recommended by the evaluator. He attended alcohol education classes and a 12-hour group intervention session. The evaluator stated he was a Level II problematic user of alcohol. See 92 Ill. Adm. Code § 1001.410, at 3518 (Supp. 1988).

The February 1988 assessment was admitted into evidence. The hearing officer took judicial notice of the file in plaintiff's prior petition for reinstatement of his driving privileges. On cross-examination, plaintiff admitted that he had read and signed an alcohol and substance abuse evaluation dated November 12, 1986. The hearing officer stated that document would be admitted into evidence. She would consider its recommendations and whether there was any evidence in the record that plaintiff complied with the 1986 evaluator's recommendations. The file of plaintiff's prior hearing and the 1986 assessment are not a part of the record on this appeal.

The hearing officer denied plaintiff's request for restoration of driving privileges and, alternatively, for a restricted driving permit. The Secretary adopted the hearing officer's findings and recommendations.

Upon review, the findings and Conclusions of an administrative agency are considered prima facie true and correct. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56.) Courts may not interfere with an agency's discretionary authority unless that power is exercised in an arbitrary and capricious fashion, or the decision is contrary to the manifest weight of the evidence. (Murdy, 103 Ill. 2d 384, 469 N.E.2d 1085; Fitzpatrick, 158 Ill. App. 3d 966, 512 N.E.2d 56.) The Secretary's decision will be found to be contrary to the manifest weight of the evidence only when the reviewing court can find, viewing the evidence in a light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary's determination. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929, 933.

The relevant factors in determining whether to issue an RDP are the degree of hardship which deprivation of driving privileges imposes upon the applicant, whether alternative means of transportation are available, and whether issuance of the permit would prove a danger to public safety and welfare. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-206(c)(3); Youle v. Edgar (1988), 172 Ill. App. 3d 498, 526 N.E.2d 894; Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295; see also 92 Ill. Adm. Code ยงยง 1001.430(b), 1001.440(d), at 3520, 3522 (Supp. 1988).) ...


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