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Clark v. White
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0376 Rel
Case Date: 09/25/2003

NO. 4-02-0376

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

CHARLES L. CLARK,
                       Plaintiff-Appellant,
                       v.
JESSE WHITE, Secretary of State,
State of Illinois,
                       Defendant-Appellee.
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Appeal from
Circuit Court of
Sangamon County
No. 01MR597

Honorable
Patrick W. Kelley,
Judge Presiding.


PRESIDING JUSTICE MYERSCOUGH delivered the opinion of thecourt:

In November 1998, defendant, the Secretary of State(Secretary), revoked plaintiff, Charles L. Clark's, driver's licenseafter he was convicted for a third time of driving under the influence of alcohol (DUI). In September 2000, the Secretary deniedplaintiff's first request for a restricted driving permit (RDP). InOctober 2001, the Secretary denied plaintiff's second request for anRDP. In November 2001, plaintiff sought administrative review of theSecretary's October 2001 decision. In April 2002, the circuit courtin Sangamon County affirmed the Secretary's decision. Plaintiffappeals, arguing the Secretary's decision is against the manifestweight of the evidence. We reverse.

I. BACKGROUND

On June 24, 1998, plaintiff was arrested for DUI after hesuffered an alcohol-induced blackout while driving home, hit twomailboxes, and landed in a ditch. His blood-alcohol concentration(BAC) was 0.224. On September 21, 1998, the Secretary summarilysuspended plaintiff's license pursuant to section 11-501.1 of theIllinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West1998)). On November 19, 1998, the Secretary revoked plaintiff'sdriver's license pursuant to section 6-205(a)(2) of the Vehicle Code(625 ILCS 5/6-205(a)(2) (West 1998)). The order revoking plaintiff'slicense stated he would be eligible for full reinstatement on orafter September 21, 2003.

On August 17, 2000, plaintiff received a formal hearing onhis first request for an RDP before hearing officer Dan Way. OnSeptember 25, 2000, the Secretary adopted Way's recommendation anddenied plaintiff's request. On March 27, 2001, plaintiff againrequested a formal hearing on his request for an RDP.

On August 31, 2001, hearing officer Brian D. Schwartzconducted a hearing. Plaintiff, the only witness, testified that heworks for the University of Illinois at Urbana-Champaign (University)on its carpet maintenance crew. His wife drives him to work becausepublic transportation is not available during the hours he works, 5p.m. to 3 a.m. Plaintiff also lives approximately 12 miles from hisworkplace. Plaintiff's job requires him to bring several pieces ofcarpet-cleaning equipment to buildings throughout the approximately15-square-mile campus. He normally walks to the buildings he isassigned to clean, pushing the equipment. Occasionally, otheremployees drive him. He testified that his supervisors have complained to him about the amount of time it takes him to travelbetween work sites and the necessity of sending other employees todrive him from building to building. He has, however, received nowritten reprimands or warnings that his continued employment is injeopardy as a result. Further, he testified that he had been passedover or had to turn down offers for "what they would call an upgrade," to supervise employees while another employee is sick or onvacation, because of his lack of driving privileges.

Plaintiff admitted that he had made untrue statements in adrug and alcohol evaluation he underwent following the June 1998 DUI. Specifically, he stated then that he had only drunk one time between1993 and 1998 and that he had consumed less alcohol on the night ofthe accident than he actually did. He stated he did so because hewas then "in denial" about his alcoholism, and that, in fact, in theyear preceding the June 1998 accident, he drank six beers or one pintof whiskey daily. Plaintiff further admitted that on the night ofthe accident, he drank "an abundance," and the BAC reading of 0.224several hours after the crash was likely lower than his BAC at thetime of the accident.

Plaintiff testified that he stopped drinking after theaccident. He completed 79 1/2 hours of treatment and regularlyattended Alcoholics Anonymous (AA) meetings. He submitted severalletters from friends and acquaintances and one from his wife tocorroborate his abstinence from alcohol in the three years betweenthe accident and the hearing. Plaintiff also testified, however,that he had previously abstained from alcohol for extended periodsand resumed drinking. Prior to having his driver's license reinstated in December 1990 after his first DUI conviction, plaintiffstopped drinking for a period of "maybe a year at the longest." After his second DUI, he testified to a period of abstinence ofnearly two years, although his testimony on direct and cross-examination was unclear as to when that period occurred.

After the August 2001 hearing, the hearing officer foundthat plaintiff had abstained from drinking alcohol since the June1998 accident, completed all treatment recommendations, and established an ongoing support system to help him remain sober. He found,however, that plaintiff failed to establish by clear and convincingevidence that the continued denial of his driving privileges causedhim undue hardship pertaining to his employment or his ability toattend AA meetings. The hearing officer further concluded plaintifffailed to provide evidence sufficient to prove his alcohol addictionhad been resolved or that he would be a safe and responsible driverand not endanger the public safety and welfare.

On October 15, 2001, the Secretary adopted the hearingofficer's recommendations and denied plaintiff's request. On November 1, 2001, plaintiff filed a petition for administrative review. On April 18, 2002, the circuit court affirmed the Secretary's decision, finding the decision was not against the manifest weight of theevidence. This appeal followed.

II. ANALYSIS

Plaintiff contends the Secretary's October 2001 decisionto deny his request for an RDP is against the manifest weight of theevidence. We agree.

Driving a vehicle is a privilege, not a right. Thus, theSecretary is authorized to revoke the license of a driver who demonstrates an unwillingness or inability to exercise that privilege withproper regard for public safety. Grams v. Ryan, 263 Ill. App. 3d390, 395, 635 N.E.2d 1376, 1380 (1994). The public interest inkeeping unsafe drivers off the public roads outweighs the individualdriver's interest in regaining driving privileges revoked after DUIconvictions. Restoration of driving privileges is, therefore, notautomatic. Grams, 263 Ill. App. 3d at 395, 635 N.E.2d at 1380. Rather, a driver seeking full restoration of driving privileges or anRDP must prove, by clear and convincing evidence, that he or she isentitled to such relief. Where, as here, the revocation of drivingprivileges was alcohol-related, the driver must prove he or she doesnot have a current problem with alcohol, poses a minimal risk ofcommitting more DUIs if allowed to drive again, has complied with allrequirements specified in the regulations, and will not endanger thepublic safety or welfare if allowed to drive. Grams, 263 Ill. App.3d at 396, 635 N.E.2d at 1380. To be granted an RDP, a driver mustalso demonstrate "undue hardship" will result from the denial of suchrelief. Grams, 263 Ill. App. 3d at 396, 635 N.E.2d at 1380.

We will not overturn the Secretary's decision unless it isagainst the manifest weight of the evidence or the result of anarbitrary or capricious exercise of his authority. Grams, 263 Ill.App. 3d at 396, 635 N.E.2d at 1380. The decision is arbitrary andcapricious if the Secretary relies upon factors the legislature didnot intend for him to consider, fails to consider an issue, or offersan explanation for his decision that runs counter to the evidence oris so implausible it could not possibly be the result of the exerciseof administrative expertise. A decision is against the manifestweight of the evidence if the opposite conclusion is clearly evident. Sanchez v. Ryan, 315 Ill. App. 3d 1079, 1082, 734 N.E.2d 920, 923(2000). The Secretary has broad discretion in determining whetherfull or partial restoration of driving privileges is appropriate ineach case. See Koeck v. Edgar, 180 Ill. App. 3d 332, 340, 535 N.E.2d1019, 1024 (1989).

A. Undue Hardship

The Secretary's rules and regulations define "unduehardship" as follows:

"'Undue [h]ardship as [i]t [r]elates to[e]mployment' means, as used in the context of[s]ections 6-205(c) and 6-206(c)3 of the [Vehicle] Code, an extreme difficulty in regard togetting to or from a petitioner's place of employment or to operate on a route during employment[,] e.g., as delivery person, becauseof the suspension, revocation, or cancellationof the petitioner's driving privileges. It ismore than mere inconvenience on the petitionerand pertains only to the petitioner. All otherreasonable means of transportation must be unavailable to the petitioner. An undue hardshipis not shown by the mere fact that the drivingprivileges are suspended or revoked.

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'Undue [h]ardship as [i]t [r]elates to[s]upport/[r]ecovery [p]rogram' means an extreme difficulty in regard to getting to andfrom a location where a petitioner is participating in an ongoing support program. It meansmore than mere inconvenience. There must be noother reasonable alternative means of transportation available. An undue hardship is notdemonstrated by the mere fact that the petitioner's driving privileges are suspended orrevoked." 92 Ill. Adm. Code

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