Webb v. White

Filed: 4/7/06 NO.
4-05-0237
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
BRITTNEY A. WEBB, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
JESSE WHITE, Secretary of State, ) No. 04MR378
State of Illinois, )
Defendant-Appellee. ) Honorable
) Leo J. Zappa, Jr.,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE TURNER delivered the opinion of the
court:
Plaintiff, Brittney A. Webb, filed an action in the
Sangamon County circuit court for administrative review of the
decision of defendant, Jesse White, Illinois Secretary of State
(Secretary), denying her petition for rescission or modification
of the 12-month suspension of her driver's license and privi-
leges. The circuit court affirmed the Secretary's decision.
Plaintiff appeals. We reverse.
I. BACKGROUND
On December 7, 2003, plaintiff and several friends went
to the High Dive, an establishment that serves liquor in Cham-
paign, Illinois, to dance. Plaintiff was 20 years old at the
time but could enter the establishment because she was over the
age of 19. The friends accompanying plaintiff were also under
the age of 21. They sat around a table and then plaintiff "and a
couple of girlfriends went to the dance floor" and danced for 15
to 20 minutes. Nobody at the table had ordered any alcohol prior
to them dancing. Plaintiff saw her friend Joey when they re-
turned to the table. Plaintiff took two or three "big gulps" of
his drink, which she thought was Pepsi because Joey was 20 years
old and did not have "a record of drinking there." After taking
her big gulps, she realized it was Captain Morgan and Coke.
Approximately 30 minutes later, the Champaign police
conducted a "raid" to catch underage drinkers. Although plain-
tiff denied having the cup with the alcohol when the police
arrived, the ordinance violation report (OVR) stated "subject was
found in High Dive with a mixed drink." Plaintiff took a porta-
ble breath test and registered a 0.005 blood-alcohol concentra-
tion (BAC). A police officer issued plaintiff an OVR charging
her with violating section 5-65(a) of the Municipal Code of
Champaign (Municipal Code) (Champaign Municipal Code _5-65(a)
(2002)). Section 5-65(a) of the Municipal Code prohibits the
purchase or possession of alcohol by persons under 21 years of
age. The OVR gave plaintiff notice to appear in Champaign County
circuit court on January 23, 2004, if she did not pay the $280
fine by December 28, 2003.
On January 14, 2004, the City of Champaign (City) filed
a complaint alleging plaintiff violated the Municipal Code. On
February 6, 2004, plaintiff pleaded guilty. On March 28, 2004,
the Secretary suspended plaintiff's driver's license and driving
privileges for 12 months pursuant to section 6-206(a)(38) of the
Illinois Vehicle Code (625 ILCS 5/6-206(a)(38) (West 2002)).
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Section 6-206(a)(38) of the Vehicle Code gives the Secretary the
discretionary authority to suspend or revoke the driving privi-
leges of any person without preliminary hearing upon a showing
that the person has been convicted of a violation of section 6-20
of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6-20 (West
2002)) or a similar local ordinance. The docket sheet reflects
that on April 16, 2004, the City represented to the court that
the matter had been satisfied and plaintiff had paid her $280
fine and court costs. On the City's motion, the cause was
dismissed.
After an informal hearing, the Secretary issued plain-
tiff a restricted driving permit (RDP). On July 28, 2004, the
Secretary held a formal hearing on plaintiff's application for
"driving relief." Plaintiff sought the rescission or early
termination of the suspension otherwise set to terminate on March
28, 2005.
The hearing officer found plaintiff's testimony she
only took a few gulps was not credible because the friends she
was with also tested positive for alcohol. This indicated the
group went to the High Dive with the intention of consuming
alcohol. The hearing officer concluded plaintiff failed to
submit sufficient evidence to warrant rescission or modification
of the order of suspension and recommended plaintiff's petition
be denied. On August 9, 2004, the Secretary adopted the hearing
officer's findings of fact, conclusions of law, and recommenda-
tions, and denied plaintiff's petition.
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On September 10, 2004, plaintiff filed a complaint in
the Sangamon County circuit court seeking administrative review
of the Secretary's decision.
II. ANALYSIS
On appeal, plaintiff argues (1) the Secretary's deci-
sion was improper as a matter of law and (2) the Secretary abused
his administrative discretion in not rescinding or substantially
modifying the suspension. We agree with plaintiff's second
argument.
Although neither party raises the issue, we initially
note it can be argued this case is moot. The record indicates
plaintiff's suspension was to end in March 2005. Further,
Champaign dismissed the case against defendant after she paid her
fines. Thus, the violation of the Municipal Code is no longer on
her record. However, moot issues may be considered under the
public-interest exception to the mootness doctrine. In re Louis
S., 361 Ill. App. 3d 774, 777, 838 N.E.2d 226, 230 (2005).
Inasmuch as the issue is the kind likely to recur and evade
review given the short duration of the action, we conclude the
case comes within a narrow exception to the mootness doctrine.
See People v. Anderson, 167 Ill. App. 3d 308, 310, 521 N.E.2d
148, 149 (1988) (applying exception to mootness doctrine when
summary suspension had already ended).
On appeal from the circuit court's judgment, we review
the Secretary's decision and not that of the circuit court. See
Gumma v. White, 345 Ill. App. 3d 610, 618, 803 N.E.2d 130, 137
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(2003).
Section 6-206(a)(38) of the Vehicle Code gives the
Secretary the discretion to suspend or revoke the driving privi-
leges of a person under 21 years of age if that person is con-
victed of a violation of section 6-20 of the Liquor Control Act
or a similar provision of a local ordinance. 625 ILCS 5/6-
206(a)(38) (West 2002). As stated, the Secretary suspended
plaintiff's driver's license for 12 months pursuant to section 6-
206(a) of the Vehicle Code. Our research revealed no cases
involving the suspension of a minor's license pursuant to section
6-206(a)(38) of the Vehicle Code. However, based on the facts
present in this case, we conclude the Secretary abused his
discretion under section 6-206(a) of the Act by suspending
plaintiff's driving privileges for 12 months.
Section 1001.460(d) of Title 92 of the Illinois Admin-
istrative Code discusses requests for modification or revocations
and suspensions of driving privileges and states the following in
pertinent part:
"[t]he period of a discretionary suspension
may be reduced for good cause shown. Factors
to consider include prior revocations or
suspensions *** and the seriousness of the
offenses. The petitioner must demonstrate
that he/she is a low risk for repeating
his/her behavior in the future. Other fac-
tors may be considered by the hearing offi-
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cer." 92 Ill. Adm. Code _1001.460(d) (Conway
Greene CD-ROM June 2003).
Here, plaintiff has no prior revocations or suspen-
sions. Plaintiff was not driving or even in a vehicle when
approached by the police. She voluntarily submitted to testing,
thereby conducting herself in a manner favored by the law were
she a driver under the zero-tolerance statute. The offense to
which plaintiff pleaded guilty is not a serious one in the City
of Champaign's eyes, for it dismissed the complaint after plain-
tiff paid her fine. Further, as discussed below, the 12-month
suspension of plaintiff's driving privileges is a much harsher
punishment than she would have received had she been driving with
the same alcohol concentration in her system.
Although the zero-tolerance statute (625 ILCS 5/11-
501.8 (West 2002)) is not at issue in this case, we look at it
and the penalties for violating it for guidance. We do this
because the zero-tolerance statute punishes drivers plaintiff's
age who drink alcohol and drive.
A minor who drinks and drives is more dangerous to
himself or herself, and the public, than someone such as plain-
tiff who was not drinking and driving. Yet the Secretary pun-
ished plaintiff four times more severely than the General Assem-
bly saw fit to set the minimum punishment for a zero-tolerance
offender who was drinking and driving but agreed to testing.
"The zero-tolerance statute, which came
into effect on January 1, 1995, is set forth
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in section 11-501.8 of the Vehicle Code (625
ILCS 5/11-501.8 (West 1998)). The statute
provides in subsection (a) that, if a person
under the age of 21, while operating a motor
vehicle on the public roads of this state, is
arrested for any traffic violation and the
arresting officer 'has probable cause to
believe that the driver has consumed any
amount of an alcoholic beverage,' the driver
'shall be deemed to have given consent to a
chemical test or tests of blood, breath, or
urine for the purpose of determining the
alcohol content of the person's blood.' 625
ILCS 5/11-501.8(a) (West 1998). When the
conditions in subsection (a) are met and the
driver is asked to submit to testing, the
driver must be warned that his driving privi-
leges may be suspended if he refuses to sub-
mit to the testing or if he submits to the
test and the test reveals an alcohol concen-
tration greater that 0.00. 625 ILCS 5/11-
501.8(c) (West 1998). After being warned, if
the driver refuses to submit to testing or if
he submits to testing and the testing estab-
lishes an alcohol concentration greater than
0.00, the officer 'shall immediately submit a
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sworn report to the Secretary of State' cer-
tifying whether the driver submitted to test-
ing or refused. 625 ILCS 5/11-501.8(d) (West
1998)." (Emphasis in original.) Gumma v.
White, 216 Ill. 2d 23, 33, 833 N.E.2d 834,
840-41 (2005).
Section 6-208.2 of the Vehicle Code sets forth the
provisions for restoration of driving privileges of persons under
21. 625 ILCS 5/6-208.2 (West 2002). Unless a minor's suspension
based upon consumption of alcohol by a minor or refusal to submit
to testing has been rescinded by the Secretary in accordance with
subsection (c)(3) of section 6-206 of the Vehicle Code (625 ILCS
5/6-206(c)(3) (West 2002)), a person whose privilege to drive has
been suspended under section 11-501.8 is not eligible for resto-
ration of the privilege until six months from the date of the
suspension for refusal or failure to complete a test to determine
alcohol concentration under section 11-501.8, or three months
from the date of a suspension imposed following the minor's
submission to a chemical test which disclosed an alcohol concen-
tration greater than 0.00 under section 11-501.8. 625 ILCS 5/6-
208.2(a)(1), (a)(2) (West 2002).
Further, in looking at this state's consent statute
(625 ILCS 5/11-501.1 (West 2002)), our supreme court has stated
the following:
"The implied-consent statute serves the
legislative purpose of promoting highway
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safety by assisting in the determination of
whether drivers suspected of intoxication are
in fact under the influence of alcohol.
[Citation.] The threat of summary suspension
for refusing to take a blood-alcohol test
motivates drivers to take the test, thereby
allowing the State to obtain objective evi-
dence of intoxication." People v. Wegielnik,
152 Ill. 2d 418, 425, 605 N.E.2d 487, 490
(1992).
Thus, the implied-consent statute gives drivers motivation to
cooperate with police and submit to chemical testing so that they
avoid summary suspension. This reasoning applies equally under
the implied-consent provision of the zero-tolerance statute (625
ILCS 5/11-501.8(a) (West 2002)).
As stated, we recognize plaintiff's license was not
suspended under the zero-tolerance statute. Rather, plaintiff's
license was suspended under section 6-206(a)(38) of the Vehicle
Code, which gives the Secretary discretionary authority to
suspend a person's driving privileges if she is convicted of a
violation of section 6-20 of the Liquor Control Act or a similar
provision of a local ordinance. 625 ILCS 5/6-206(a)(38) (West
2002).
If plaintiff had been driving and submitted to testing
which disclosed a 0.005 alcohol concentration, she would be
eligible for restoration of her driving privileges after three
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months (625 ILCS 5/6-208.2(a)(2) (West 2002)); and if she was
driving and refused to submit to testing, thus conducting herself
in a manner disfavored by law, she would be eligible for restora-
tion of her driving privileges after only six months (625 ILCS
5/6-208.2(a)(1) (West 2002)). In fact, the penalty the Secretary
imposed on plaintiff is equal to the penalty she would have
received under the zero-tolerance statute had she been a driver
who had been previously suspended under section 11-501.8 of the
Vehicle Code and submitted to a test that disclosed an alcohol
concentration greater than 0.00. See 625 ILCS 5/6-208.2(a)(4)
(West 2002).
The Secretary has clearly abused the discretion given
to him by section 6-206 of the Vehicle Code. The Secretary's
exercise of his discretion should have been guided by the punish-
ments set forth by the legislature that we described above for
minor drivers who drink and drive. We discern no rational reason
for the Secretary's decision to more severely punish a nondriver
who had a BAC of 0.005 than a driver with an equal BAC.
Plaintiff also challenges the constitutionality of the
Secretary's action. It is not clear to us under what theory
plaintiff challenges the constitutionality of the Secretary's
action; her arguments could be interpreted as (1) a
proportionate-penalties argument, (2) an equal-protection argu-
ment, or (3) that section 6-206(a)(38) is unconstitutional as
applied to her because her license was suspended for 12 months
while the statutory penalty for somebody the same age as plain-
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tiff who was driving an automobile and submitted to a
Breathalyzer test that revealed a BAC over 0.00 is only 3 months.
We need not address plaintiff's constitutional argument in light
of our conclusion the Secretary abused his discretion in not
modifying plaintiff's suspension. "[A] reviewing court will not
address constitutional questions if the case may be disposed of
on other grounds." People v. Wenger, 258 Ill. App. 3d 561, 567,
631 N.E.2d 277, 281 (1994).
III. CONCLUSION
For the reasons stated, we reverse the circuit court's
judgment.
Reversed.
APPLETON and COOK, JJ., concur.
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