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Sanchez v. Ryan, No. 1-99-3757

1st District, July 26, 2000

THIRD DIVISION

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Petitioner appeals an order affirming the Secretary of State's denial of his third petition for reinstatement of driving privileges or, in the alternative, a restricted driving permit (RDP). We affirm.

Petitioner was arrested for driving under the influence of alcohol (DUI) on April 9, 1993. The record shows his blood-alcohol content (BAC) on arrest was .23. Petitioner pleaded guilty and his driver's license was suspended for three months. 625 ILCS 5/11-501 (West 1996). Petitioner was again arrested for DUI on August 14, 1995. A breathalyzer test revealed a .22 BAC. Notice of suspension for the second conviction was issued on September 12, 1995, under section 11-501 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501 (West 1996)). Petitioner was convicted of DUI on October 16, 1995. Orders suspending and revoking petitioner's driving privileges were then entered on January 17, 1996, under sections 7-304 and 6-205(a)(2) of the Code (625 ILCS 5/7-304, 6-205(a)(2) (West 1996)).

Petitioner was evaluated on September 11, 1995. He took the Mortimer-Filkins test and scored a 45, indicating petitioner was a presumptive problem drinker. The Mortimer-Filkins test is a detection tool used to identify alcoholism or an alcohol problem. Petitioner completed 10 hours of remedial alcohol and drug education on February 20, 1996. Petitioner also completed 20 hours of group and outpatient counseling on March 8, 1996. He completed a recommended 10 hours of aftercare treatment on January 30, 1997. Petitioner was classified as a Level II-Significant Risk on admission into treatment. He was classified at the same level on discharge.

Petitioner's first petition for reinstatement or an RDP was heard on June 18, 1996. The petition was denied on July 11, 1996. Petitioner's testimony was deemed "unconvincing and in direct conflict with the documentary evidence presented." A second petition was heard on January 31, 1997. This petition was also denied based on petitioner's unpersuasive testimony.

Petitioner filed a third petition for reinstatement or an RDP on May 12, 1998. A hearing was held on September 9, 1998, at which the following evidence was presented.

Petitioner testified that he drank 12 beers in six to eight hours on August 14, 1995, when he was arrested for driving under the influence. Petitioner testified that he also drank 12 beers in eight hours when he received his first DUI conviction on April 9, 1993. Petitioner said he was 20 years old at the time of his first arrest.

Petitioner said that before his first arrest, he drank two beers every two weeks and up to five beers on at least three occasions. Petitioner said he stopped drinking "for no reason" in January 1995. He did not drink again until August 14, 1995, when he drank "one beer to cool down." He was later arrested for driving under the influence. Petitioner said he had not consumed alcohol since his second arrest and conviction. Petitioner admitted feeling intoxicated before his two arrests, but he claimed that he still felt able to drive. Petitioner denied experiencing hangovers or headaches after drinking. He also denied experiencing withdrawal symptoms during his abstinence from alcohol.

Petitioner denied his alcohol tolerance was due to years of "practice drinking." Petitioner explained he inherited a high tolerance for alcohol from his paternal grandfather and uncle. He denied that problems at home or work caused him to drink. Petitioner said that his inherited tolerance explained why he could drink large amounts of alcohol and still feel he was able to drive. But petitioner admitted he would feel lightheaded after drinking five beers.

Alan R. Gill testified that he counseled petitioner for about 40 hours. Gill is a state-licensed provider of DUI assessment and treatment services. He is also a state-licensed clinical social worker. Gill admitted a discrepancy between petitioner's claimed use of alcohol and the BACs from his two DUI arrests. Gill explained that this could be from genetic predisposition or from years of "practice drinking." Gill dismissed "practice drinking" because petitioner did not suffer hangovers and he believed petitioner's claim of only moderate drinking. He concluded that petitioner's family history (a paternal grandfather and uncle) suggested that petitioner was genetically disposed to have a higher tolerance for alcohol. Gill then referred to a series of articles that discussed genetic disposition to tolerance. These materials were submitted as exhibits and made part of the record. Gill's discharge summary indicated that petitioner was straightforward and cooperative during treatment and admitted abusing alcohol to "cope with life stressors."

Gill also testified that he reevaluated petitioner on September 8, 1998, in preparation for the hearing. Gill said that petitioner's Mortimer-Filkins score was 38, indicating a social drinker. Gill said that petitioner was not an alcoholic and did not show withdrawal symptoms during his abstinence from alcohol. Gill said he did not believe petitioner would ever drink and drive again.

Petitioner's mother, Catalina Sanchez, testified last. Catalina confirmed petitioner's abstinence from alcohol since August 1995. She also testified that her father-in-law and husband's brother drank "quite a bit" 35 years ago while working on a Mexican ranch. Catalina denied that petitioner drank a lot before his DUI arrests.

The hearing officer considered the testimony and exhibits submitted. The hearing officer accepted that it was possible to inherit a predisposition for high tolerance to alcohol but found that petitioner failed to establish that he had this genetic predisposition. The hearing officer noted that the only evidence supporting the genetic predisposition theory was petitioner's claim that his paternal grandfather and uncle drank heavily more than 35 years ago. Petitioner admitted that his own father and mother did not drink.

The hearing officer also found petitioner's testimony about his drinking habits to be inconsistent with his BAC levels at the time of arrest, suggesting minimization or denial of an unresolved alcohol problem. The hearing officer found Gill's testimony inconsistent and unreliable. He then recommend that the petition for reinstatement or an RDP be denied.

The trial court affirmed the Secretary of State's decision and found that the order was not arbitrary or against the manifest weight of the evidence and was based largely on the credibility of witnesses.

Petitioner raises five issues on appeal: whether (1) his sobriety and other evidence require reinstatement of his driving privileges; (2) defendant's use of official notice to prove petitioner's tolerance violated petitioner's right to due process; (3) defendant used expert testimony improperly; (4) the ruling was arbitrary and capricious; and (5) the ruling was against the manifest weight of the evidence.

An administrative agency's factual findings and conclusions are prima facie correct. 735 ILCS 5/3-110 (West 1996). We will not disturb the factual findings and conclusions of an administrative agency unless they are against the manifest weight of the evidence. Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533, 538, 687 N.E.2d 39 (1997). A decision is against the manifest weight of the evidence only when the opposite conclusion is clearly evident. Robbins, 177 Ill. 2d at 538. We do not believe the opposite conclusion, that petitioner is entitled to reinstatement or an RDP, is clearly evident under this record.

To be entitled to reinstatement where the loss of driving privileges is alcohol related, a petitioner must prove, by clear and convincing evidence, that he does not have a current problem with alcohol, he is a low or minimal risk to repeat past abusive behavior and operate a motor vehicle while under the influence of alcohol, he has complied with all other standards as specified in the regulations, and the granting of driving privileges will not endanger public safety or welfare. 92 Ill. Adm. Code