NO. 4-04-1016
                                                                                                                              Filed 12/02/05

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE KNECHT delivered the opinion of the court:

In April 2000, plaintiff, John R. Jennings, applied tothe Secretary of State (Secretary) for a restricted drivingpermit (RDP). The Secretary denied this petition. Jenningsappealed to the Sangamon County circuit court, which, in September 2001, found Jennings "would be a safe and responsible driver"and ordered the Secretary to issue Jennings an RDP.

On April 2003, before his RDP expired, Jennings petitioned the Secretary pro se for full reinstatement of his drivingprivileges. The Secretary, in June 2003, denied his request. Later, Jennings petitioned the circuit court for administrativereview. The court denied his petition.

Jennings appealed. On appeal, Jennings argues thecircuit court erred by (1) finding the Secretary properly refusedto issue Jennings an RDP; (2) affirming the Secretary's decisionwhen the court had found him a safe and responsible driver inSeptember 2001; (3) allowing the Secretary to supplement therecord on administrative review; and (4) approving the Secretary's consideration of an invalid arrest for driving under theinfluence (DUI). We affirm.

I. BACKGROUND

Jennings had a history of alcohol-related trafficoffenses beginning in April 1984 when he was arrested for illegaltransportation of alcohol. In November 1988 and May 1993,Jennings was arrested for DUI. Following both arrests, Jenningsrefused to submit to a Breathalyzer test and his driving privileges were summarily suspended. Jennings's driving privilegeswere revoked on October 6, 1993. In June 2000, the Secretarydenied plaintiff's request for reinstatement of his drivingprivileges or, in the alternative, an RDP. Jennings petitionedthe circuit court for administrative review. While his appeal tothe circuit court was pending, Jennings, in February 2001, wasarrested for DUI. In April 2001, the circuit court of IroquoisCounty rescinded Jennings's later statutory summary suspensionupon finding "No Reasonable Grounds."

In September 2001, the circuit court of Sangamon Countyordered the Secretary to issue Jennings an RDP after findingJennings met his burden of proving he would be a safe and responsible driver. The Secretary, in December 2001, ordered theissuance of a RDP for a period of 12 months. Approximately sixmonths later, Jennings received an RDP.

Before the RDP expired, Jennings, in April 2003,applied to the Secretary for full reinstatement of his drivingprivileges. In so doing, Jennings requested a formal hearingunder section 2-118 of the Illinois Vehicle Code (625 ILCS 5/2-118 (West 2002)).

In support of his request, Jennings submitted analcohol and drug evaluation, as well as signed documents attesting to Jennings's abstinence and participation in a nontraditional support-recovery program. The evaluation, signed May2003, stated, "No reported substance use since 9-22-93." Itfurther indicated no changes since the earlier evaluation datedNovember 16, 1999. The evaluator concluded Jennings was highrisk but in remission. A neighbor, by affidavit dated 2003,stated she knew Jennings to be abstinent for 10 years. Jennings's wife reported Jennings "had some relapses in the pastbut he attend[ed] support meetings and they [helped] him a lot." Jennings's mother-in-law reported she had known Jennings 23 yearsand saw him daily. She reported, "Each time I see John he issober and a gentleman."

Jennings proceeded pro se and testified at the hearing. According to Jennings, before his last DUI arrest in 2001, hewent on a service call to fix a machine in a bar. The driverbecame intoxicated. Jennings, even though he knew his licensehad been revoked, decided to drive. He was arrested. Thearresting officer told him he pulled him over because he wasdriving on the wrong side of the road. Jennings stated he tookthe Breathalyzer test, but the officer refused to show him theresults. Jennings received a summary suspension after he waspulled over.

Jennings testified that before his 1988 and 1993 DUIarrests he drank approximately once or twice per week, usually onweekends. He drank "[p]robably a 12-pack if not more," and hedrank "to be a part of the crowd." After the 1993 DUI arrest,Jennings quit drinking.

Jennings testified he had relapsed. Between 1993 and1995, he would be sober for a month and relapse for a short time. His last relapse occurred in approximately 1995. The reason forthe relapse was the death of a friend. The relapse lasted oneday. Jennings had not consumed a drink since 1995. Jennings didnot tell his evaluator about the relapses because she "neverasked me no questions like that." Jennings also did not tell thehearing officer at his hearing on the RDP about the relapses:"She never asked me, 'Have you ever had a relapse?'"

Jennings testified he experienced hangovers fromdrinking. He did not experience blackouts or miss work. He didnotice an increased tolerance to alcohol. When Jennings quitdrinking, he experienced no withdrawal symptoms.

Jennings refused to say he would never drink again:

"Q. *** Can you guarantee you'll neverdrink again?

A. No, sir.

Q. Why not?

A. Because I'd be lying.

Q. Why would you be lying?

A. Because I don't know what's going tohappen down the future, what miserable thingscould happen to somebody, you know. I ain'tsaying I just go to alcohol to make me feelbetter but it does happen."

Jennings testified to prevent relapses he is to stayaway from taverns. Jennings testified his job required him tofix machines from taverns, but most of the time he fixed themachines at the shop. Jennings's interest in his future prevented him from drinking. He wanted to get a college degree. Jennings testified he had attended one year. He earned straightA's and made the honor roll. Jennings testified he could notcontinue to proceed toward his degree without his license. Jennings also relied on a higher power to prevent relapse.

Jennings did not attend Alcoholics Anonymous (AA). Hepreviously attended AA, but stopped. He was, however, involvedin a support group. Jennings admitted being an alcoholic. Jennings also admitted he used marijuana one time in 1993 to getinto rehabilitation. Also to get into rehabilitation, Jenningslied and reported drinking 36 cans of beer every day. Jenningstestified he did not drive at the present for any other reasonthan for work or for medical purposes.

The hearing officer issued findings and recommendations. The hearing officer concluded the evidence showedJennings was an alcoholic, but he provided sufficient evidenceshowing his involvement in support and recovery. But the hearingofficer concluded Jennings did not satisfy his burden of provinghis alcohol dependency was adequately addressed and he would be asafe and responsible driver. The hearing officer emphasized aletter from Jennings in which he admitted driving outside theparameters of his RDP and the fact Jennings drove in February2001, as evidenced by his testimony that he was arrested for DUI. The hearing officer recommended denying Jennings's request. InJune 2003, the Secretary adopted the hearing officer's findingsand recommendations.

Jennings petitioned the circuit court for administrative review. The Secretary moved to supplement its answer withthe letter referenced in the hearing officer's decision. Later,the Secretary submitted an affidavit by the hearing officer. Theaffidavit explained the hearing officer had the letter at thehearing and relied upon it in rendering her decision. The courtallowed the Secretary's motion and denied the petition foradministrative review. This appeal followed.

II. ANALYSIS

Jennings sets forth four arguments on appeal. Jenningsargues the circuit court erroneously (1) concluded the Secretary's refusal to reissue an RDP was proper, (2) permitted theSecretary to consider evidence predating the court's September2001 decision finding him a safe and responsible driver, (3)allowed the Secretary's motion to supplement the record with anexhibit not before the hearing officer, and (4) approved theSecretary's consideration of an invalid arrest.

We first note Jennings's arguments on appeal areimproperly centered on the propriety of the circuit court'sdecision. When a court of review undertakes administrativereview, that court reviews the decision of the agency and not thedecision of the circuit court. See Key Outdoor, Inc. v. Department of Transportation, 322 Ill. App. 3d 316, 320, 750 N.E.2d709, 712 (2001). We thus review all but one of Jennings'scontentions as directed not toward the decision of the circuitcourt, but that of the Secretary. Jennings's third argument,that the circuit court erred by allowing the Secretary to supplement the record, however, requires review of the court's decision. See 735 ILCS 5/3-111(a)(2) (West 2004) (providing circuitcourts with power to make orders deemed appropriate "for theamendment *** of the record of proceedings of the administrativeagency"); see also Biscan v. Village of Melrose Park Board ofFire & Police Commissioners, 277 Ill. App. 3d 844, 847, 661N.E.2d 424, 427 (1996).

Jennings first argues the Secretary erroneously refusedto renew his RDP when the circuit court, in September 2001,ordered the RDP issued. This argument fails for the simplereason Jennings never requested renewal of his RDP. The application for driving privileges completed and signed by Jenningsasked for reinstatement of full driving privileges. On apreprinted form, Jennings requested a formal hearing to affordhim the opportunity to apply for full reinstatement of hisdriving privileges. He did not apply for an RDP, and he did notcheck the box seeking full reinstatement or an RDP. Because hedid not ask the Secretary to renew his RDP, he has forfeitedconsideration of this issue. Carpetland U.S.A., Inc. v. IllinoisDepartment of Employment Security, 201 Ill. 2d 351, 396-97, 776N.E.2d 166, 192 (2002) ("As a general rule, issues or defensesnot raised before the administrative agency will not be considered for the first time on administrative review").

Jennings next contends the Secretary improperly foundhe did not prove he was a safe and responsible driver. Insupport, Jennings first argues this finding conflicts with thefindings of the circuit court on September 28, 2001, concludinghe was a safe and responsible driver and ordering the Secretaryto issue him an RDP. Citing one case, Rauschenberger v. Board ofEducation, Heritage Community Unit School District No. 8, 223Ill. App. 3d 412, 417, 584 N.E.2d 1050, 1054 (1991), Jenningsmaintains this court may not now consider the propriety of the2001 order as it was not appealed. Jennings then maintains theonly facts that should have been considered as to Jennings'sapplication are those that occurred after the 2001 decision.

We disagree. In Rauschenberger, this court observed"where a higher court renders a final decision and remands toanother tribunal and a subsequent appeal is taken from thedecision of that tribunal, the new appeal concerns only thequestion of whether the new disposition conforms to the mandateand the propriety of any decisions on issues left open by themandate." Rauschenberger, 223 Ill. App. 3d at 413, 584 N.E.2d at1051. To apply Rauschenberger to these facts, this court mustconclude the issue before the Secretary was the same as beforethe circuit court in September 2001. In other words, we mustconclude Jennings sought an RDP in June 2003 or a renewal of hisRDP as issued in 2001. We have addressed and rejected thisargument. In April 2003, Jennings sought full reinstatement ofhis driving privileges, which required an examination of whetherhe was a safe and responsible driver as of that date. Nothing inhis application asked the Secretary to comply with, to amend, orotherwise address the 2001 order. Rauschenberger is distinguishable.

Because the issue on review is whether Jennings was asafe and responsible driver as of June 2003 and not whether hewas a safe and responsible driver before 2001, Jennings's contention the Secretary could have only considered evidence postdatingthe 2001 decision fails. First, Jennings provided no citationsof authority to support this proposition. He has thereforeforfeited consideration of it. See Elder v. Bryant, 324 Ill.App. 3d 526, 533, 755 N.E.2d 515, 522 (2001); see also OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7),eff. October 1, 2001).

Second, Jennings himself put pre-2001 evidence atissue. Jennings submitted an evaluation that concluded he hadbeen sober since 1993, but then testified to the contrary byadmitting he had a number of relapses from 1993 to sometime in1995. He submitted affidavits of sobriety. One of these affidavits, signed by Jennings's wife, stated Jennings experiencedrelapses. Another contradicted the false statement Jennings hadbeen abstinent since 1993.

Last, pre-2001 evidence is relevant to the issue ofwhether Jennings was a safe and responsible driver at the time ofhis 2003 application and hearing. Not only is it relevant towhether the affidavits and evaluation sufficiently supportJennings's application, but also it is relevant to whetherJennings will abide by the laws applicable to driving privileges. Next, Jennings contends the Secretary erred in determining Jennings violated his RDP. Jennings contends the onlyevidence of the violation was a letter not presented to orconsidered by the hearing officer at the time of the hearing. Jennings maintains the letter surfaced sometime later, and thecircuit court erred by allowing the Secretary to supplement therecord with the letter.

The issue here is whether the circuit court properlyallowed the record to be supplemented with the letter. Thecircuit court has the power to make any order it deems appropriate to amend the record of the proceedings before the administrative agency. See 735 ILCS 5/3-111(a)(2) (West 2004); see alsoBiscan, 277 Ill. App. 3d at 847, 661 N.E.2d at 427. Given thisgrant of authority to the circuit court, we will not reverse adecision whether to supplement the record under section 3-111unless that decision is an abuse of discretion. See Sahara CoalCo. v. Department of Mines & Minerals, 103 Ill. App. 3d 115, 120-21, 431 N.E.2d 394, 398 (1981).

The letter at issue, dated March 10, 2003, was receivedfrom Jennings by the Breath Alcohol Ignition Interlock Device(BAIID) Unit. In this letter, Jennings admitted driving beyondthe restrictions of his RDP. Jennings wrote he, in December2002, picked up his children, went to the grocery store, anddrove "to get my kids on Christmas."

At the hearing on Jennings's application, the Secretarysubmitted a group exhibit to the hearing officer. The Secretarydescribed the group exhibit, but did not reference the letter.

At the hearing, no further mention of this exhibit was made. Nospecific reference to the letter occurred during the hearing.

The hearing officer relied on the letter in renderingits decision:

"[Jennings] has also driven onrestricted driving permits since June 18,2002. While driving on the restricted driving permits, [Jennings] was subject to theterms and conditions of the Breath AlcoholIgnition Interlock Device (BAIID) Program.[Jennings] was sent a Request for Explanationfrom the Office of the Secretary of Stateregarding attempts to tamper with or circumvent the device on February 27, 2003. [Jennings's] response letter to the BAIIDunit dated March 10, 2003, indicates that[Jennings] was given permission by Alco Testto bypass the device due to mechanical problems. However, [Jennings's] letter indicatesthat on December 12, 2002, he had to 'pick upmy kids on time,' on December 22, 2002, hewas 'at the grocery store in town'; on December 25, 2002, he was driving 'to get mykids'; and on other occasions he had been tothe 'drive-up bank'. (Secretary [e]x[.][No.]3)."

After Jennings petitioned the circuit court for administrative review, the Secretary filed a supplemental answer toadd Jennings's letter to the record. According to the supplemental answer, the letter "should have been included in the Recordas part of Secretary *** [e]xhibit [No.] 3." Later, the Secretary filed an affidavit by the hearing officer, which stated thefollowing:

"3. During the hearing, *** the attorneyrepresenting the Secretary of State, presented Secretary's [e]xhibit [No.] 3, whichcontained a letter written by Mr. Jennings tothe BAIID Unit.

4. I reviewed the contents of Mr. Jennings'letter, and information contained in thisletter was used as part of the basis fordenial of driving privileges as a result ofthe hearing in this matter."

We cannot find an abuse of discretion. In the affidavit, the hearing officer stated the letter was included inexhibit No. 3. Moreover, the hearing officer's decision onJennings's application not only referred to the letter, but alsoreferred to it as part of exhibit No. 3. These facts corroboratethe assertions in the affidavit. The record reveals sufficientfacts that support the court's decision to supplement the record.

Last, Jennings contends the Secretary erred by considering his February 2001 arrest for driving under the influence ofalcohol. Jennings argues two reasons the arrest should not havebeen considered. Jennings first contends the arrest occurredbefore the court's September 2001 order and thus was barred bythe doctrine of collateral estoppel. Second, Jennings maintainsbecause the arrest was illegal, evidence of his driving wasinadmissible in the civil proceeding.

We need not address this argument. The evidenceclearly showed Jennings drove without a license in 2001 before hewas granted his RDP. It is also apparent the circuit court wasnot aware of this behavior when it ordered the Secretary to issuean RDP. The collateral estoppel argument is without merit. However, assuming the evidence should not have been considered,ample evidence supports the Secretary's decision to denyJennings's application for reinstatement of full driving privileges.

The Secretary's decision is entitled to deference. Wewill not interfere with a decision of an administrative bodyunless that decision was an arbitrary or capricious exercise ofdiscretion or against the manifest weight of the evidence. McDougall v. White, 355 Ill. App. 3d 483, 485-86, 823 N.E.2d 589,592 (2005). When the record contains evidence fairly supportingthe decision of the agency, that decision is not against themanifest weight of the evidence. McDougall, 355 Ill. 2d at 486,823 N.E.2d at 592.

Here, the record supports the Secretary's decision. Jennings sought restoration of driving privileges. He bore theburden of establishing by clear and convincing evidence he wasentitled to have those privileges restored. Conklin v. Ryan, 242Ill. App. 3d 32, 36, 610 N.E.2d 751, 755 (1993). Jennings didnot meet this burden. He provided an evaluation and affidavitsthat relied on false information regarding his sobriety. Theevaluation made no mention of the relapses. One affidavitmentioned relapses but did not refer to dates. Another indicated10 years of sobriety, despite Jennings's contention he hadrepeated relapses from 1993 to 1995. In addition, Jennings, inhis letter to the BAIID Unit, admitted violating the terms of hisRDP. Jennings failed to comply with driving regulations and givesufficient evidence of his sobriety. We affirm the Secretary'sdecision.

For the foregoing reasons, we affirm the circuitcourt's judgment.

Affirmed.

STEIGMANN and MYERSCOUGH, JJ., concur.