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06/23/94 MARK K. GRAMS v. GEORGE H. RYAN

June 23, 1994

MARK K. GRAMS, PLAINTIFF-APPELLEE,
v.
GEORGE H. RYAN, SECRETARY OF STATE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 92MR301. Honorable Leo Zappa, Judge Presiding.

Released for Publication July 25, 1994. As Corrected September 6, 1994.

Honorable James A. Knecht, J., Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

The Secretary of State (Secretary) appeals from the order of the circuit court of Sangamon County reversing its denial of Mark Grams' petition for reinstatement of his driving privileges or a restricted driving permit (RDP). The Secretary contends the circuit court erred in finding its determination to be manifestly erroneous. We agree and reverse.

I. BACKGROUND

Grams was arrested for speeding on April 19, 1990. (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 11-601.) He was convicted of this offense on May 22, 1990. He was arrested a second time for speeding on August 10, 1990, and convicted on September 11, 1990. On November 17, 1990, he was arrested for illegal transportation of alcohol. (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 11-502.) He was convicted of this offense on November 19, 1990. On December 11, 1990, Grams was arrested for driving under the influence of alcohol (DUI). (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(2).) He submitted to a breathalyzer test which revealed a blood-alcohol content (BAC) of .26%. Grams was convicted of DUI on May 29, 1991.

On January 27, 1991, Grams' driving privileges were suspended for three months as the result of his arrest for DUI and submission to breathalyzer test which revealed a BAC in excess of .10%. (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 6-208.1(a)(2).) On February 26, 1991, an additional suspension of driving privileges was imposed; Grams' driving privileges were suspended for six months as the result of having three or more convictions of moving violations in a 12-month period. (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 6-206(a)(2).) On June 20, 1991, Grams' driving privileges were revoked as the result of his conviction of DUI. Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(g).

Grams obtained an alcohol evaluation from the Human Resources Center (HRC). (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(e).) Ten hours of remedial education and 17 hours of counseling were recommended. Grams completed the remedial education and counseling in January 1992.

On March 12, 1992, Grams applied for reinstatement of his driving privileges or, in the alternative, an RDP. On March 30, 1992, the Secretary denied Grams' request. The Secretary noted the amount of alcohol Grams acknowledged consuming on the night of his DUI arrest was inconsistent with his BAC of .26%. The BAC also suggested a greater tolerance than would normally be expected based upon Grams' reported history of alcohol use. The Secretary suggested Grams obtain assistance from his treatment facility in resolving these issues.

On April 8, 1992, Karen K. Kelley, a substance abuse counselor at the HRC, wrote a letter to the Secretary noting she was aware of the discrepancy between Grams' BAC of .26% and his reported alcohol consumption; however, she found during the course of treatment Grams remained "consistent and reliable with his reported history." Kelley's recommendation was that "no further treatment is necessary at this time."

Grams filed a second request for driving privileges on May 1, 1992. On June 8, 1992, the Secretary informed Grams his request had been denied. The Secretary explained Grams' BAC level of .26% and classification as "Level II, ProblematicUse, Moderate Risk" (see 92 Ill. Adm. Code § 1001.410 (1991)) is inconsistent with his representations he never had problems with alcohol.

II. THE ADMINISTRATIVE HEARING AND CIRCUIT COURT'S REVIEW

Grams requested a formal hearing (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 2-118), which was held on September 3, 1992. At the hearing, Grams' driving record, as set forth above, was read into the record. The evaluations and other material documenting Grams' remedial education and counseling were admitted into evidence. According to the evaluations, Grams was classified as a "Level Two, Problematic Use, Moderate Risk," as the result of his BAC on the night of his arrest. According to the information Grams supplied to the evaluator, prior to his arrest for DUI, Grams drank six alcoholic beverages, once a week. After his arrest for DUI, he reduced his consumption to one or two alcoholic beverages no more than once a month. Grams' wife, who was interviewed in April 1991, told the evaluator ...


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