Agans v. Edgar
| Decision Date | 29 April 1986 |
| Docket Number | No. 4-85-0559,4-85-0559 |
| Citation | 97 Ill.Dec. 270,492 N.E.2d 929,142 Ill.App.3d 1087 |
| Parties | , 97 Ill.Dec. 270 Jerald E. AGANS, Plaintiff-Appellee, v. Jim EDGAR, Secretary of State, State of Illinois, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Neil F. Hartigan, Atty. Gen., Chicago, Roma Jones-Stewart, Sol. Gen., Karin Kepler, Asst. Atty. Gen., for defendant-appellant.
David E. Leefers, Jacksonville, for plaintiff-appellee.
The Secretary of State (Secretary) appeals the order of the circuit court of Sangamon County upon administrative review which reversed the decision of the Secretary denying the plaintiff a restricted driving permit. The circuit court further ordered the Secretary to restore the plaintiff's license and driving privileges.
On September 19, 1978, plaintiff was arrested for operating a motor vehicle without a valid driver's license, improper traffic lane usage, and driving while under the influence of alcohol. (Ill.Rev.Stat.1977, ch. 95 1/2, pars. 6-101, 11-709(a), 11-501.) Before a hearing was held on these offenses, plaintiff was again arrested on October 20, 1978, for driving while under the influence of alcohol. Plaintiff was convicted of the two nonalcohol related charges on October 31, 1978. The two charges of driving while under the influence were heard together on December 5, 1978. Plaintiff pleaded guilty to both charges and was convicted. On December 22, 1978, two orders were issued revoking plaintiff's license and driving privileges pursuant to section 6-205(a)(2) of the Illinois Vehicle Code (Ill.Rev.Stat. 1977, ch. 95 1/2, par. 6-205(a)(2)). The driving privileges of plaintiff have not been restored since the entry of the orders. Subsequently the orders revoking plaintiff's license and driving privileges were extended effective July 30, 1980, because of plaintiff's conviction on June 16, 1980, for driving while his license was revoked. Ill.Rev.Stat. 1977, ch. 95 1/2, par. 6-303.
Plaintiff made application for full reinstatement of driving privileges in 1982 and 1983 and made written requests for formal hearings thereon. The hearings were held on June 10, 1982, and August 11, 1983. Both requests were denied by the Secretary.
Plaintiff made written application for a restricted driving permit in the fall of 1984. Shortly thereafter, by letter dated October 22, 1984, plaintiff's attorney requested a formal hearing "to determine whether or not [plaintiff's] driving privileges should be reinstated." The cause was set for hearing on December 12, 1984. Plaintiff's counsel had a conflict on the day of the hearing, and plaintiff elected to proceed pro se in spite of the opportunity for a continuance offered by the attorney for the Secretary. At the hearing plaintiff's driving record was admitted, and the hearing officer took judicial notice of the files of the two previous hearings in 1982 and 1983. Plaintiff presented his testimony and introduced an alcohol assessment from the Jacksonville Area Council on Alcoholism (JACOA), a letter certifying completion of the Libertas Chemical Dependency Program of St. John's Hospital, and several recommendation letters from relatives, work supervisors, and fellow members of the local Alcoholics Anonymous chapter (AA). In a written order dated February 14, 1985, the Secretary denied plaintiff's application for a restricted driving permit but made no decision regarding reinstatement of plaintiff's driving privileges. In the findings and recommendation of the hearing officer, the hearing officer recorded the requested relief as a restricted driving permit and recommended denial of the same.
On July 18, 1985, the circuit court, upon administrative review, reversed the Secretary's decision and, further, ordered the Secretary to restore the license and driving privileges of plaintiff. The Secretary filed notice of appeal on August 16, 1985. The Secretary moved to stay the circuit court's order pending appeal, but the circuit court denied the motion. The Secretary appealed the denial and we stayed the order of the circuit court until further order.
The two issues raised on appeal are (1) whether the Secretary's decision to deny plaintiff a restricted driving permit is against the manifest weight of the evidence and (2) whether the failure of the Secretary to consider the restoration of full driving privileges to plaintiff at the hearing is error such that the lower court was justified in ordering reinstatement of plaintiff's license.
The law in the State of Illinois is clear that once a person's privilege to drive has been revoked the restoration of that privilege is not an automatic matter. (People v. Turner (1976), 64 Ill.2d 183, 354 N.E.2d 897.) The Secretary of State has considerable discretion in issuing licenses to persons whose licenses have been revoked:
"Any person whose license or permit or privilege to drive a motor vehicle on the highways has been revoked shall not be entitled to have such license or permit or privilege renewed or restored.
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[T]he Secretary of State shall not issue such license unless and until he is satisfied after investigation of such person that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare." (Ill.Rev.Stat.1983, ch. 95 1/2, par. 6-208(b).)
The preeminent interest in public safety applies equally to the issuance of a restricted driving permit: "[T]he relevant inquiry before issuing a restricted driving permit is the danger to the public safety and welfare." Murdy v. Edgar (1984), 103 Ill.2d 384, 392, 83 Ill.Dec. 151, 155, 469 N.E.2d 1085, 1089.
Because we consider the issue of whether the Secretary's decision is against the manifest weight of the evidence, we must look in detail at the facts in the record.
At the hearing on December 12, 1984, the Secretary offered plaintiff's driving record as evidence. That record showed a conviction for illegal transportation of alcohol in May 1977, two convictions for driving while under the influence of alcohol in December 1978 as well as two convictions for nonalcohol related offenses arising out of the circumstances surrounding one of the driving while under the influence of alcohol convictions, and a conviction in June 1980 for driving while his license was revoked. Along with this evidence, the hearing officer took judicial notice of the files of plaintiff's two previous hearings on request for restoration of full driving privileges.
The file from the first hearing on June 19, 1982, contained an alcohol assessment and a remedial education evaluation form completed by Ron Blimling, the education coordinator for JACOA. Blimling stated on the evaluation form that he "would like for [plaintiff] to meet initially with [sic ] outpatient counselor to explore [sic ] current drinking pattern." Some eight days later, in preparing the alcohol assessment, Blimling explained his initial doubts about whether plaintiff had resolved his alcohol problem as bias "due to the client's track record from previous treatment here at JACOA in 1978, and word of mouth from the community at large." Blimling stated, "I now cannot say honestly that the client still has any problem at all with alcohol due to his employee record and letters from his friends." Finally Blimling noted that plaintiff successfully completed an alcohol impaired driver's program. He recommended plaintiff receive restoration of driving privileges. Included, also, in the file were three letters from plaintiff's supervisors from his place of work and five letters from friends attesting to plaintiff's character and, on the whole, stating that plaintiff had no problems with alcohol.
At the conclusion of the first hearing, the Secretary denied plaintiff's application on the basis that plaintiff appeared to have a drinking problem and had failed to submit sufficient evidence to show the problem was solved. Therefore, plaintiff had not "overcome the Secretary of State's interest in public safety and welfare."
The file from the second hearing, on August 11, 1983, contained an updated alcohol assessment and an alcohol evaluation form, again completed by Blimling. On their face the assessment and the evaluation recommended plaintiff take different paths. The evaluation form stated that plaintiff had a current alcohol problem and recommended treatment. In the assessment Blimling noted plaintiff's perception of himself as a " 'normal drinker,' " that is, " 'someone who may or may not have a beer after work.' " Plaintiff denied any problems with alcohol to Blimling. The counselor's conclusion was that he could perceive "nothing to indicate any problems with [plaintiff and] alcohol over the past five years," and recommended plaintiff receive full driving privileges. The hearing officer noted in his findings the apparent contradiction in the evidence between the alcohol assessment and the alcohol evaluation from Blimling. The hearing officer found that plaintiff, on oral examination, denied having been treated for alcoholism but further stated that he had followed the programs recommended by Blimling. Plaintiff admitted his then current practice of having a couple of beers with friends after work and a few more when he got home.
The hearing officer evaluated the evidence and the testimony, including the discrepancies, and concluded that he could not find that the "high risk syndrome is not in existence"; the interest in public safety and welfare outweighed plaintiff's interest in a driver's license. Plaintiff made no appeal of either of these decisions by the Secretary.
At the hearing on December 12, 1984, from which this appeal derives, plaintiff again submitted an updated alcohol assessment, completed by Sheryl Johnson, the new education program coordinator at JACOA. No evaluation forms accompanied this assessment. Plaintiff reported to Johnson that he had maintained total sobriety for...
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