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Docket No. 95590-Agenda 16-January 2004.

PATRICK C. ARVIA, Appellee, v. LISA MADIGAN, Attorney
General, et al., Appellants.

Opinion filed April 15, 2004.
 

JUSTICE FITZGERALD delivered the opinion of the court:

At issue in this appeal is the constitutionality of section 11-501.8 ofthe Illinois Vehicle Code (625 ILCS 5/11-501.8 (West 2000)),commonly referred to as the "zero tolerance law." Generally, the zerotolerance law provides that any driver under the age of 21 who testspositive for the presence of alcohol or refuses testing upon a policeofficer's proper request is subject to summary suspension of his or herdriving privileges. 625 ILCS 5/11-501.8(a), (d) (West 2000). The zerotolerance law also provides that a driver may contest such a suspensionat an administrative hearing before the Secretary of State, whose decisionis subject to judicial review pursuant to the Administrative Review Law(735 ILCS 5/3-101 et seq. (West 2000)). 625 ILCS 5/11-501.8(e), (h)(West 2000).

The circuit court of Cook County held section 11-501.8unconstitutional on its face, finding the administrative proceedingscontemplated in the statute violate the equal protection and due processrights of drivers under the age of 21. The State appealed directly to thiscourt. See 134 Ill. 2d R. 302(a). We reverse.

BACKGROUND

On July 29, 2000, a Winnetka police officer issued a traffic citationto plaintiff Patrick Arvia for failing to obey a stop sign. The police officeralso issued plaintiff a "Zero Tolerance Warning to Motorist Under 21,"and requested plaintiff take a Breathalyzer test. The warning advisedplaintiff, who was under the age of 21, that refusal to complete requestedchemical tests would result in suspension of his license for a minimum ofsix months. The warning also advised plaintiff that if he submitted to therequested test and the test disclosed an alcohol concentration greater than0.00,⁽¹⁾ his driving privileges would be suspended for a minimum of threemonths. Plaintiff refused to take the Breathalyzer test. The officer prepareda sworn report, certifying that plaintiff had refused the test, and submittedthe report to the Secretary of State. The Secretary of State, in turn,notified plaintiff that his driving privileges would be suspended for sixmonths, beginning September 13, 2000.

Plaintiff requested a hearing before the Secretary of State, seekingrescission of the suspension of his driving privileges. The hearingproceeded on September 18, 2000. Plaintiff offered various grounds forrescission: the officer had no reason to believe that he had violated theIllinois Vehicle Code; the officer lacked probable cause to believe that hehad consumed any amount of alcohol; and the officer failed to advise himof the consequences prior to asking him to submit to a Breathalyzer test.Plaintiff also claimed that he had not, in fact, refused to take a Breathalyzertest, and that he had ingested a prescribed or recommended dosage ofmedicine that contained alcohol. After hearing testimony and consideringthe evidence, the hearing officer rejected plaintiff's arguments andrecommended denial of plaintiff's petition for rescission. The Secretary ofState, in an order entered November 2, 2000, accepted the hearingofficer's recommendation and upheld the suspension. The order statedthat it was "subject to appeal within 35 days under the AdministrativeReview Law [735 ILCS 5/3-101 et seq. (West 2000)]."

Plaintiff did not seek review of the Secretary's final decision underthe Administrative Review Law. Rather, on November 28, 2000, plaintifffiled a complaint for declaratory judgment, naming then Attorney GeneralJames Ryan and Secretary of State Jesse White as defendants.⁽²⁾ Plaintiffsought a declaration that section 11-501.8 of the Illinois VehicleCode-the zero tolerance law-violates the equal protection rights of driversunder the age of 21. In his complaint, plaintiff did not mention theadministrative hearing which he had requested, and in which he hadalready participated, or the Secretary of State's final decision upholdingthe suspension of his driving privileges. Plaintiff did allege that on August21, 2000, he had filed a "Petition to Rescind the Statutory SummarySuspension" in the circuit court, but that he had been unable to obtain ahearing on that petition; he then filed his complaint for declaratoryjudgment.

The State moved to dismiss plaintiff's declaratory judgment action,pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS5/2-615 (West 2000)). The circuit court denied that motion. Thereafter,plaintiff moved for summary judgment (735 ILCS 5/2-1005 (West2000)). Plaintiff posited that drivers 21 years of age or older who refuseto submit to a chemical test for alcohol and are subject to summarysuspension of their driving privileges (625 ILCS 5/11-501.1 (West2000)) are entitled to a judicial hearing to contest the suspension (625ILCS 5/2-118.1(b) (West 2000)), but that under the zero tolerance law,drivers under the age of 21 who refuse to submit to such a test and aresubject to summary suspension of their driving privileges may onlychallenge the suspension at an administrative hearing before the Secretaryof State (625 ILCS 5/11-501.8(e) (West 2000)). Plaintiff argued that norational reason exists to deny him the right to appear before a "neutraljudge" to challenge his license suspension, and that the statutoryclassification, based on age, was unreasonable and arbitrary, violating hisright to the equal protection of the law as guaranteed by the United Statesand Illinois Constitutions (U.S. Const., amend. XIV,