author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM L. RUSHING, Defendant-Appellant.
    Fourth District
    No. 4—88—0830
    Opinion filed December 21, 1989.

      Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant William L. Rushing was charged by information with one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(c)(1)). The offenses allegedly occurred on or about the summer of 1986 against a minor complaining "witness, D.B. The single count of aggravated criminal sexual assault alleged defendant committed an act of sexual penetration with D.B. by placing his finger in her vagina. The charges of aggravated criminal sexual abuse alleged defendant committed acts of sexual conduct with D.B. by touching her vaginal area with his finger and by having D.B. touch his penis with her hands. On September 16, 1988, following a jury trial in Champaign County, defendant was convicted of the two counts of aggravated criminal sexual abuse. Defendant was sentenced to four years’ imprisonment on each count, to be served concurrently. Defendant appeals his convictions, alleging the trial court erred in admitting hearsay testimony and in allowing the prosecutor’s closing argument. We affirm.

Prior to trial, the prosecutor filed notice of its intent to present evidence pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115—10). The notice informed defendant of the State’s intent to offer out-of-court statements of D.B. made to Pam Roberts, Detective Michael Parker, and Dr. Mary Kathleen Buetow. At a pretrial hearing held pursuant to section 115 — 10(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(1)), the court heard testimony from D.B., Roberts, and Parker. D.B. testified she told “Pam,” a doctor, and a policeman what happened to her. Roberts and Parker recounted D.B.’s allegations, and the court examined the report of Dr. Buetow. Over defendant’s objection, the trial court permitted admission of the out-of-court statements.

At trial, D.B. testified she was nine years old and met defendant through the Caravan program at the Nazarene Church. Defendant was a teacher and drove the Caravan group to activities. D.B. spent the night twice at defendant’s home, once with her sister and once by herself. On the night she spent alone at defendant’s residence, D.B. went to bed wearing a T-shirt and underpants. She claimed defendant came into the room she was sleeping in, sat on the corner of the bed, and rubbed his “private part” on her leg and arm. Yellow and white “goop” got on her arm when he touched it with his “private part.” Defendant had D.B. hold his “private” in her hands. He left the room when they heard his wife drive up.

Dr. Buetow, a pediatrician, testified she examined D.B. on June 20, 1988. As part of the examination, D.B. told her that about a year ago she went to the home of a man from her church, Bill Rushing. He took her into a bedroom of his home where he took the “thing between his legs” and rubbed it on her arms, legs, and thighs. “White, yellow sticky stuff” came out onto her arms. D.B. told Dr. Buetow defendant pulled up her shirt and pulled down her underpants. He put his finger in her private part and left it there for one or two minutes. He stopped when his wife came home. Over defense objection, Dr. Buetow testified D.B. said defendant told her not to tell anyone. Defendant stated if she did tell he would go to jail and when he got out he would kill her mother and father.

Ms. Taylor, D.B.’s mother, testified she enrolled her children in the Caravan program approximately 21/2 years ago. Defendant was a teacher and bus driver there. Approximately two years before trial, D.B. spent the night with defendant on two occasions. Her sister accompanied her on one of the stays.

Michael Parker, a detective with the Champaign police department, testified he interviewed D.B. on May 27, 1988. He testified D.B. told him the incident occurred at defendant’s home when only she and defendant were there. The incident happened a long time ago. Defendant removed her underwear and played with her private parts. She stated defendant put his finger “inside where she pees.” She stated defendant rubbed his “private part” on her cheeks and had her touch his “private part.” “Yellow and white goop” came out. She also stated defendant told her not to tell anyone. Defendant stated if she did, he would go to jail and when he got out he would kill her mother and father.

Pam Roberts, a neighbor of D.B., testified that on May 26, 1988, D.B. was playing with her daughter. The girls began to argue, and Roberts went outside to see what was going on. D.B. was upset with Roberts’ daughter and also upset with “Bill.” D.B. said nobody was her friend. D.B. said she was afraid because defendant told her he would kill her mother, father, brother, sister, and hurt her. D.B. said the incident occurred when she spent the night at defendant’s home after a cookout. D.B. put her hand near her groin area and said defendant touched her under her pajamas. D.B. also said defendant rubbed “it” on her body and that “white, yellowish stuff” got on her skin.

In his work with the Church of the Nazarene, defendant testified he taught Sunday school, helped in the Caravan program and with junior church, was an outreach director, and sat on the church board. Defendant testified D.B. and her sister did on one occasion sleep over at his home. On this occasion, D.B. came into his bedroom when his wife was not home and woke him up. He put his arm around her and talked to her for a short time. He then told her to go back to her room as she could not stay with him. Defendant could not remember D.B. ever having stayed at his home alone. Defendant testified on May 22 or 23, 1988, he was at church in the back of a large room with his group. D.B. was supposed to be in the front of the room with her group. D.B. kept coming back to defendant wanting to sit with him. He told her to sit with her own group. D.B. became upset and pinched defendant. Several days later the police informed him of D.B.’s accusations.

The jury convicted defendant for the act of touching the vaginal area of D.B. and for having D.B. touch his penis with her hands. Defendant was not convicted of the charge which alleged penetration. At trial, D.B. testified to the act of touching defendant’s penis. Regarding the other allegations, D.B.’s testimony was defendant had touched her somewhere else and she had told the doctor what defendant did with his fingers. Additional details of the allegations were presented to the jury by Dr. Buetow, Parker, and Roberts. Their testimony recited what D.B. had told them regarding the incident.

Defendant alleges the trial court erred in admitting the out-of-court statements. Testimony by a witness as to something told to the witness by another is hearsay if the testimony is offered to proved the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) According to defendant, the testimony of Dr. Buetow, Parker, and Roberts as to what D.B. told them defendant did was hearsay as it was offered to prove the truth of these matters. Generally, hearsay testimony is not admissible though exceptions to this rule are made. Here, the trial court granted admission of the out-of-court statements pursuant to the hearsay exception for sexual acts on a child under the age of 13. Ill. Rev. Stat. 1987, ch. 38, par. 115-10.

Defendant contends the purpose of section 115 — 10 is only to provide corroboration a complaint was made. Any details beyond those necessary to corroborate are impermissible. (People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916; People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.) The cases cited by defendant interpreted section 115 — 10 of the Code as enacted January 1, 1983, and as subsequently amended effective July 1,1984. The statute stated:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.)

After the cases cited by defendant, section 115 — 10 was again amended. Effective January 1, 1988, section 115 — 10 of the Code now states:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.)

The parties are in agreement that the admissibility of evidence of corroborative complaints by D.B. is governed by the amended section 115 — 10. However, the parties are in dispute as to the interpretation of section 115 — 10.

This court recently interpreted the amended section 115 — 10 in People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366. At issue was the admissibility of statements made by minor J.M. to a DCFS investigator and a deputy sheriff in a trial for aggravated sexual assault. The statements were detailed accounts of sexual acts performed upon J.M. by the defendant. This court held section 115 — 10 permits hearsay testimony concerning details of sexual acts reportedly perpetrated upon minor victims beyond the mere fact a complaint was made. The same interpretation was made by the Third District Appellate Court in People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125.

The failure of D.B. to testify at trial to specific details regarding the touching of her vaginal area or to defendant’s threat does not distinguish this case. Section 115 — 10 does not require every detail recited be corroborated by the child’s testimony at trial. (Morton, 188 Ill. App. 3d at 102, 543 N.E.2d at 1371.) The purpose of the amended statute was to expand the previous hearsay exception permitting the content of out-of-court statements made by child victims to be admitted. (85th Ill. Gen. Assem., Senate Proceedings, June 26, 1987, at 227.) The amended statute provides for safeguards of reliability prior to admission of an out-of-court statement. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(1).) None of these safeguards require the child’s trial testimony be a complete replication of the out-of-court statement. Had the legislature intended to make such a requirement, it would have been listed among with the other required safeguards. The jury could properly find defendant touched D.B.’s vaginal area on the basis of all the evidence.

Moreover, the trial court did not err in admitting into evidence out-of-court statements of the threat made by defendant. D.B.’s testimony at trial regarding the threat was as follows:

“Q. [By prosecutor:] And, did he say anything to you about telling anyone?
A. [By D.B.:] Yes.
Q. And, what did he say? Did he say anything at all about it if you told? Is there some reason why you can’t tell us, ***?
MR. SILVERMAN: Objection, judge.
THE COURT: Objection is overruled, Mr. Silverman.
Q. Is there some reason why you don’t want to tell us, ***?
A. (Witness nods head up and down)
Q. And, why is that? Did he say anything about your mother or father?
A. Yes.
Q. And, what did he say? It’s okay to tell us. What did he say about your mother or father? Do you think you can answer that question?
A. (Witness nods back and forth)
MRS. LADD: May the record reflect the witness shaking her head no. Would you feel better if I asked that question in a few minutes?
A. No.
MR. SILVERMAN: I didn’t hear the answer.
THE COURT: No.”

Dr. Buetow, Parker, and Roberts testified D.B. told them defendant threatened to kill her family if she told anyone what he did to her. Section 115 — 10(a)(2) provides for admission of an out-of-court statement “describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(a)(2).

D.B.’s out-of-court statements regarding the threat are admissible as a detail pertaining to the offense and as a description of the complaint. Defendant was charged with aggravated criminal assault and aggravated criminal sexual abuse. While the threat was not a statutory element of the offenses, it is admissible under the amended section 115 — 10. The threat was spoken contemporaneously with the sexual acts. Defendant made the threat while lying in bed with D.B. The threat was not a separate matter but a detail of the acts. Furthermore, these statements describe the complaint of the acts.

Defendant has challenged the credibility of D.B.’s complaint. Defendant contends D.B. concocted the allegations in retaliation for a reprimand two or three days earlier by defendant. Introduction of the out-of-court statements clarifies the nearly two-year gap between occurrence and reporting which defendant suggests as evidence of fabrication. Due to the contemporaneous nature of the threat with the acts and the challenges made to D.B.’s credibility, the threat has become integrally intertwined with the offense. Under these circumstances, D.B.’s out-of-court statements regarding the threat are admissible.

Regarding introduction of both the details of the acts and the threat, defendant was not denied the right of confrontation. D.B. did testify regarding these allegations. She was subject to cross-examination and could have been confronted with the prior statements. No confrontation problem arises from admission of her out-of-court statements. (See California v. Green (1970), 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930.) The trial court did not err in its admission of these out-of-court statements.

Defendant further contends the testimony of Dr. Buetow was in violation of section 115 — 13 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115—13) as the details related were not relevant to diagnosis and treatment and Dr. Buetow was an examining physician and not a treating physician. Section 115 — 13, effective January 1, 1988, provides:

“In a prosecution for violation of Section 12 — 13, 12 — 14, 12— 15 or 12 — 16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.” Ill. Rev. Stat. 1987, ch. 38, par. 115-13.

Defendant’s interpretation of section 115 — 13 is incorrect. The interpretations which defendant cites are common law rules and not interpretations of the statute. Section 115 — 13 does not provide for a distinction between examining physicians and treating physicians. Instead, it provides that statements of sexual assault victims to medical personnel for purposes of “diagnosis or treatment” shall be admitted. The reference to diagnosis or treatment evinces a legislative intent to apply this provision broadly and not to limit the testimony only to treating physicians.

D.B.’s report of the acts and threat to Dr. Buetow was reasonably pertinent to diagnosis or treatment. D.B, was examined by Dr. Buetow approximately one month after reporting the incident and nearly two years after its occurrence. D.B.’s mother took her to see a physician after D.B. reported a vaginal discharge, which D.B. described as being similar to the “goop” from defendant’s “private part.” In examining and treating such complaints of a nine-year-old girl suspected of sexual abuse, details of the sexual acts were certainly pertinent. Under the same circumstances, the threat was relevant to D.B.’s state of mind and emotional condition. All the statements were relevant in determining the approximate time of the alleged act and to the credibility of D.B. These are all matters which would reasonably be considered and relied upon by medical personnel in making any diagnosis or conclusion as to a patient’s condition and proper course of treatment. Thus, the statements were also admissible under section 115 — 13.

Last, defendant contends he was deprived of a fair trial when the prosecutor, in the course of closing argument, referred to characteristics of child molesters. No evidence on this subject had been introduced at trial. Defendant contends such argument was highly prejudicial and constituted unsworn testimony of the prosecutor.

The disputed portions of prosecutor’s closing argument and the objection to it are as follows:

“[By the prosecutor:] Reasonable doubt. Not any doubt, or all doubt. Is the evidence reasonable. Does it raise a reasonable doubt in your mind, and ask yourself this when you are talking about reputation evidence. What would a child molester look like. Would a child molester walk around and have horns, did he have child molester stamped on his forehead. Is it someone that you are going to know when he walks down the street. He is going to look like anybody that we encounter. He [s-ic] will be in a position where they work with children, where they have access to children, maybe troubled children or children who come from troubled homes like D.B. did, children that they could win their trust. They are going to be sterling citizens, fine reputations. The reputations are going to be above reproach.
[By defense counsel:] There is no evidence about molesters, and what the reputation might be.
[By the Court:] Ladies and gentlemen, this is true that there is no evidence on this point. I think this is, however, within the realm of appropriate arguments on the subject of reputation, and it’s to be taken by you as counsel’s assessment of reputation evidence with regard to people charged with this offense. You may continue.
[Prosecutor:] It’s not so unusual that Mr. Rushing would have a good reputation, at least until he was caught. This is a very difficult case. Every one of these cases where you have a child and an upstanding member of the community you have a difficult decision to make, and it’s very troubling, and you have to go back in that jury room, and say that this man who has a good reputation and has all of these people in the church behind me, would do such a thing.”

Prosecutors are allowed great latitude in closing arguments. To determine whether error exists, each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) Arguments and statements based upon facts in evidence or upon legitimate inferences from such evidence are not outside the bounds of proper argument. (People v. Oliger (1975), 32 Ill. App. 3d 889, 336 N.E.2d 769.) The substance and style of closing arguments are within the discretion of the trial court and its finding will not be disturbed absent extreme error. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.) Moreover, improper prosecutorial remarks can be cured by instruction to the jury to disregard argument not based on the evidence and to consider instead only the evidence presented. People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.

In this case, the jury was presented with testimony from a number of defendant’s friends and associates stating the defendant had a good reputation for morality and truthfulness. The prosecutor could properly refer to this evidence and try to convince the jury the defendant was guilty beyond a reasonable doubt despite his reputation. The prosecutor’s argument was not testimony but instead an attempt to appeal to the jury’s common sense and experience by informing them child molesters were no different in appearance than anyone else and could indeed have good reputations. The prosecutor did not state these characteristics or traits were proven by studies, prior cases, or authorities. Nor did the prosecutor state defendant had exhibited the traits or characteristics commonly associated with child molesters.

At the time the remarks were made, the court admonished the jury there was no evidence before them of the characteristics, traits, or reputation of child molesters and the prosecutor’s argument should be taken only as his assessment of reputation evidence with regard to people charged with the offense. The jury was instructed it should decide the case based solely on the testimony of the witnesses and that any argument not based on the evidence should be disregarded. In this context and considering the sufficiency of the other evidence, the prosecution’s argument did not constitute reversible error.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FLOYD E. BERRY, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—89—0104
    Opinion filed December 7, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Manion, Janov, & Devens, Ltd., of Danville (Nancy S. Samaras, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Floyd E. Berry filed an action in the circuit court of Sangamon County for administrative review of the decision of defendant Jim Edgar, Secretary of State for Illinois (Secretary), denying his petition for reinstatement of full driving privileges or, in the alternative, a restrictive driving permit (RDP). The circuit court reversed the decision of the Secretary, and the Secretary brings this appeal. At issue is whether the Secretary’s denial of plaintiff’s petition was against the manifest weight of the evidence and contrary to current law.

The record shows plaintiff’s driver’s license and driving privileges were revoked on October 11, 1985, pursuant to section 6 — 205(a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. OBVa, par. 6— 205(a)(2)) for an August 21, 1985, conviction of driving while under the influence of alcohol (DUI). Pursuant to section 2 — 118 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118), plaintiff requested a formal hearing before the Secretary of State for the purpose of seeking full reinstatement of his driving privileges or, in the alternative, an RDP. A formal hearing was held on June 12,1987.

At the hearing, the Secretary introduced evidence of plaintiff’s driving-related arrests and convictions. Plaintiff was arrested on October 30, 1982, for DUI but pleaded guilty to the offense of reckless driving. Plaintiff was again arrested for DUI on April 20, 1985, and pleaded guilty to the offense on August 21, 1985. Plaintiff’s additional convictions were for speeding and disregarding a traffic control light. The Secretary also entered into evidence the transcript, evidence, and findings of plaintiff’s previous formal hearing held January 14, 1987. At this hearing, the Secretary had also denied plaintiff’s petition for reinstatement of driving privileges or an RDP.

Plaintiff testified he was 49 years old, divorced, and living in Hoopeston, Illinois. Plaintiff is employed by Food Machinery Incorporated, working the seven to three shift. His home is one mile from work. He commutes back and forth by bicycle. However, this irritates his arthritis.

Plaintiff testified he has abstained from alcohol since January 4, 1987. Prior to this abstention, plaintiff claimed he drank very rarely. Plaintiff testified to a previous period of abstention from 1979 to 1985. On the two single occasions plaintiff broke his abstinence during this period, he was arrested for DUI. Plaintiff cited his alcohol consumption as a contributing factor in the break-up of his marriage, but he did not believe his use was problematic. Plaintiff agreed with his alcohol evaluation classification as a level I, non-problematic user (see 92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988)), and stated he had never really had a major problem with drinking.

In denying plaintiff’s petition, the hearing officer found plaintiff failed to provide sufficient evidence his alcohol problem had been resolved and that he would be a safe driver who would not endanger the public safety or welfare. In making this finding, the hearing officer found the evidence concerning plaintiff’s use of alcohol unclear, contradictory, and incredible. On review, the circuit court reversed the Secretary’s ruling denying plaintiff’s petition. The circuit court found the ruling to be against the manifest weight of the evidence and contrary to the holding of Craig v. Edgar (1988), 165 Ill. App. 3d 270, 519 N.E.2d 112. On appeal, we reverse the decision of the circuit court.

The Code grants the authority to the Secretary to reinstate driving privileges or to issue RDP’s. (Ill. Rev. Stat. 1987, ch. d51lz, pars. 6 — 206, 6 — 208.) A review of the Code makes it clear once driving privileges are revoked, the restoration of such privileges is not automatic. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) Pursuant to section 6 — 208(b), the Secretary shall not reinstate full driving privileges until satisfied the granting of the privilege will not endanger public safety or welfare. The same is required for the issuance of a RDP; however, there the petitioner must also demonstrate hardship. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206(c)(3).) It is the burden of the petitioner to establish such entitlement by clear and convincing evidence. Caracci v. Edgar (1987), 160 Ill. App. 3d 892, 513 N.E.2d 932.

In determining plaintiff did not meet his burden, the hearing officer was justified in finding plaintiff’s testimony was not credible. The hearing officer found plaintiff’s allegations regarding his six-year abstinence and intervening alcohol-related arrests to be unbelievable. No witnesses testified to corroborate plaintiff’s allegations. The letters written on plaintiff’s behalf dwelled on his good character, but did not mention his abstinence. From plaintiff’s testimony, the hearing officer also suspected a more severe alcohol problem. Plaintiff stated he has never really had a problem with alcohol. He cited his previous consumption of alcohol was generally three beers twice a month while watching sports on television. This is in contrast to a greater consumption reported in plaintiff’s alcohol evaluation report and previous formal hearing testimony. A letter from plaintiff’s supervisor reports plaintiff’s attendance at work has “improved dramatically” over the last six months. This is the same period of time plaintiff alleged his most recent abstinence from alcohol. Furthermore, plaintiff testified alcohol was a contributing factor in the breakup of his marriage. His alleged six-year period of abstinence was an effort to save his marriage. Plaintiff could not explain why he chose to return to drinking, thereby jeopardizing a marriage he was trying to save. The hearing officer observed the demeanor of plaintiff to be vague and unpersuasive.

Section 3 — 110 of the Administrative Review Law provides “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) This statute has been construed to mean courts may not interfere with the discretionary authority vested in administrative bodies unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. (Murdy, 103 Ill. 2d 384, 469 N.E.2d 1085.) Consequently, a court of review is not to reweigh the evidence or make an independent determination of the facts. Rather, the reviewing court’s sole function is to ascertain whether the final decision of the administrative agency is just and reasonable in light of the evidence presented. (Sheldon v. Edgar (1985), 131 Ill. App. 3d 489, 475 N.E.2d 956.) If there is anything in the record which fairly supports the action of the agency, the decision is not against the manifest weight of the evidence and must be sustained upon judicial review. Sheldon, 131 Ill. App. 3d at 494, 475 N.E.2d at 959.

An administrative agency’s decision is not contrary to the manifest weight of the evidence merely because this court might have decided this case differently in the first instance. (Collura v. Board of Police Commissioners (1985), 135 Ill. App. 3d 827, 482 N.E.2d 143.) Moreover, if the issue before the reviewing court is merely one of conflicting testimony and credibility of witnesses, the administrative agency’s decision should be sustained. (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998.) We do not find the Secretary’s decision to be against the manifest weight of the evidence.

The circuit court order reversing the Secretary’s decision stated the ruling was contrary to the holding of Craig v. Edgar (1988), 165 Ill. App. 3d 270, 519 N.E.2d 112. In Craig, this court affirmed the circuit court’s reversal of the Secretary’s decision denying an RDP. Unlike the case at bar, Craig’s driver’s license was a necessity for employment as an operator of machinery. Though denying Craig’s request, the hearing officer found sufficient evidence of hardship. Craig testified he stopped drinking approximately one year prior to the hearing. This was corroborated by letters and a witness. His alcohol evaluation summary indicated he was a non-problematic drinker. In Craig, this court stated the required alcohol evaluation, incurred at the expense of the petitioner, should not be ignored in determining whether to reinstate driving privileges. Craig, 165 Ill. App. 3d at 273, 519 N.E. 2d at 114.

Pursuant to the Secretary’s rule-making power (see Ill. Rev. Stat. 1983, ch. 951/2, par. 2—104), section 1001.440 of the Secretary’s rules provides that in all applications for reinstatement or RDPs, applicants must submit an alcohol or drug evaluation. (92 Ill. Adm. Code §1001.440, at 3520-23 (Supp. 1988).) It is still our opinion the required alcohol evaluation, incurred at the expense of the petitioner, should not be ignored in determining whether to reinstate driving privileges. However, the evaluation is not the sole factor to be considered. See 92 Ill. Adm. Code §§1001.430(b), 1001.440(d), at 3520, 3522 (Supp. 1988).

Plaintiff is suggesting a favorable alcohol evaluation commands restoration of driving privileges. This is not the case. To do so would make the requirement of a formal hearing worthless, and the discretion to be exercised by the Secretary nothing more than a mere rubber stamp. It is the Secretary’s role to determine whether the reissuance of plaintiff’s driving privileges will endanger the public safety and welfare. Such a determination cannot be replaced by an evaluation which by itself does not even address this issue. Rather, a determination must be made from all the evidence presented. Here, the Secretary did not ignore plaintiff’s alcohol evaluation, but appropriately considered the totality of the evidence in making its determination.

Reversed; Secretary’s order affirmed and reinstated;

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE GREEN,

text:
      In re ESTATE OF CLAIRE C. PARKHILL, Deceased (Bank of Pontiac, Ex’r, et al., Petitioners-Appellants, v. Barbara C. Highland et al., Respondents-Appellees).
    Fourth District
    No. 4—89—0133
    Opinion filed December 28, 1989.
    GREEN, J., dissenting.

      Harvey S. Traub, of Traub & Weeks, Ltd., of Fairbury, for appellant.
    Brown, Hay & Stephens, of Springfield (Edward J. Cunningham and Harvey M. Stephens, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The decedent Claire C. Parkhill died April 11, 1988. The circuit court of Livingston County admitted her will to probate on April 25, 1988. Homer filed a petition on September 20, 1988, requesting that court to fix a surviving spouse’s award for him. After a hearing, the court entered a comprehensive order on November 14, 1988, fixing the award in the minimum sum of $10,000. Petitioner has appealed, the only issue being whether the trial court erred in not awarding a surviving spouse’s award greater than the minimum where the estate was in excess of $1 million.

In providing for a surviving spouse’s award, which is a second-class claim under section 18 — 10 of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 10), section 15 — 1(a) of the Act at times relevant here stated that such a person shall be allowed

“such a sum of money as the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate and such additional sum of money as the court deems reasonable for the proper support, during such period, of minor and adult dependent children of the decedent who reside with the surviving spouse at the time of decedent’s death.” (Ill. Rev. Stat. 1987, ch. 1101/2, par. 15—1(a).)

We are involved here with the determination of a surviving spouse’s award under very unusual circumstances.

This case concerns a situation where two couples had been good friends, and one wife and one husband died. Sometime thereafter the survivors married but the wife died 15V2 months thereafter. The husband was a physician who had lived well but entered this marriage with a negative net worth. The decedent was wealthy and had made substantial gifts to the husband by cash payments and placing property in joint tenancy with right of survivorship in him. The trial court found that joint tenancy assets, consisting almost entirely of assets previously owned by the decedent passing to the surviving spouse, included:

A. City Bank of Bloomington (bank account) $ 51,799.16
B. Pontiac National Bank (bank account) $ 51,152.15
C. Commonwealth Edison Shares $ 18,198.75
D. MFS Municipal Bond Trust Shares $ 82,974.14
E. MFS High Yield Municipal Bond Trust $ 45,147.14
TOTAL $ 249,271.34

In addition to the liquid assets, the surviving spouse as joint tenant now owns a $40,000 to $50,000 motor home and a residence valued at over $100,000 but less than $180,000. His substantial debts, except one to his mother, have been paid. The surviving spouse’s negative net worth at the time of marriage is now a significant positive net worth.

In reaching its decision, the circuit court placed great emphasis upon the enhancement of petitioner’s financial situation (1) upon marrying decedent; and (2) after her death by virtue of the joint tenancy property and the interests he received under her will. The court concluded no need existed to “supplement [petitioner’s] assets in order to provide a proper level of support.” In considering petitioner’s “condition in life,” the court concluded petitioner had enjoyed the same high standard of living before his marriage to the decedent as he had during that marriage, and he was continuing to do so after her death. The court concluded petitioner needed no further money to alleviate his financial condition.

Homer’s principal contention in asserting error is that he and Claire lived a lavish life-style, travelling, shopping and spending all of their earned income. The evidence presented was principally that of Homer, an accountant, and exhibits of cancelled checks. Homer’s testimony as to present expenses indicated spending $220 to $300 per month in restaurants, maid service of $40 to $50, and a one-time clothing expense of $400. When asked concerning his budget or monthly expenses, he responded, “I can’t because its changeable from month to month.” As to vacations, “I don’t have any plans right now in mind, but I know that I need to get away from a lot of this business stuff and I hope to be on a vacation in the next couple of months.”

Homer’s testimony was of little help to the trial court. He knew little about his expenses, what needed to be paid, or what was paid. The record does show in the four-month period preceding Claire’s death, a loan of $10,455 was paid, and an indebtedness on a home owned by him ($7,995) was paid. He testified he took care of the finances because of Claire’s condition of ill-being. The respondents argue that during this period of time some $110,000 in debts were paid.

The trial court properly took into consideration the nonprobate property received by Homer; the provisions of Claire’s will; Homer, in a 15-month period, went from being a high-living doctor with a substantial debt to a debt-free high liver, with joint tenancy assets of at least $350,000, a one-third interest in a $1.3 million estate, and the income for life in the balance.

The principal purpose of section 15 — 1 is to provide a surviving spouse with a sum of money to allow him to live for nine months in the manner he has been accustomed and to remove as many financial worries as possible during a difficult period.

There is not a plethora of cases in Illinois on the widow’s award. In giving meaning to the terms “reasonable,” “proper support,” “condition in life of a survivor,” and “condition of the estate,” it is proper for the trial court to look at the totality of the circumstances. Here it is clear there is no need for “support” in excess of the minimum; the “condition in life of a survivor” is a mass of substantial joint tenancy assets derived through the generosity of the decedent; the “condition of the estate,” provides a one-third interest in $1.3 million and a life estate in the balance.

In re Estate of Caffrey (1983), 120 Ill. App. 3d 917, 922, 458 N.E.2d 1147, 1150, states:

“The plain meaning of the statute does not support the restrictive view advocated by respondent. We do not believe the legislature intended a rigid and technical limitation to the court’s consideration of the assets left by the decedent in determining the support necessary for the surviving spouse. In our view the court may properly consider nonprobate assets which the surviving spouse has received.”

In In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 208 N.E.2d 604, the decedent and his widow had lived together since their marriage and he was her only means of support. As stated in Handmacher, the statute “does not restrict the widow to the bare necessities of life, but rather provides for a sum of money which will allow her to live in the manner that she has been accustomed to for a period of nine months after the death of her spouse.” Handmacher, 60 Ill. App. 2d at 379, 208 N.E.2d at 606.

In In re Estate of O’Neill (1982), 104 Ill. App. 3d 488, 432 N.E.2d 1111, the evidence did not show that the decedent ever financially supported the claimant after he left her house. In fact, nothing in the record showed the decedent ever financially supported the claimant during their marriage or how their marital life-style was different from her life-style before the marriage and after their separation. As indicated in O’Neill:

“The court in the instant case met this objective. Claimant was living in the same manner as she had been while decedent was alive. The Handmacher court did not specify that a financially independent surviving spouse was required to receive more than the minimum amount.” 104 Ill. App. 3d at 489-90, 432 N.E.2d at 1112.

As stated in Handmacher with respect to the legislation on spouse’s award:

“This statute was designed to help alleviate the widow’s problems by removing as many of her financial worries as possible during this difficult period.” (Handmacher, 60 Ill. App. 2d at 380, 208 N.E.2d at 606.)

We agree that the spouse’s award should be liberally construed. The similarity in this case and Handmacher is that the Handmachers had been accustomed to living on a rather lavish scale. In the instant case, Parkhill did not indicate there was a change in life-style, but rather that in fact he maintained the same life-style prior to his marriage to decedent as he did when he was married to the decedent.

The consideration of the joint tenancy property in this case was proper. Homer did not show a need or entitlement to more than the minimum.

The purpose of section 15 — 1 being to provide support during a difficult period, it is proper for the trial court to consider nonprobate assets received by the surviving spouse. Certainly, the “condition in life of a survivor” is an appropriate consideration. Standing alone, Homer’s “condition in life” during this traumatic nine-month period was sufficient basis for the minimum award.

The trial court did not abuse its discretion, and its order setting the minimum award is affirmed.

Affirmed.

SPITZ, J., concurs.

JUSTICE GREEN,

dissenting:

As the majority has explained, section 15 — 1(a) of the Probate Act of 1975 (Act) provides for a surviving spouse award in the amount “the court deems reasonable for the proper support [of the survivor for nine months] in a manner suited to the condition in life [of the survivor] and to the condition of the estate” (Ill. Rev. Stat. 1987, ch. 1101/2, par. 15—1(a)). The parties do not dispute that absent insolvency of the estate, the level of living to which the survivor is to be aided to continue is that which he or she enjoyed during the marriage. However, neither the foregoing language nor the case law makes clear the extent to which the ability of the survivor to continue that life-style from other resources negates entitlement to an award. This puts a very difficult burden on the circuit court. Perhaps the recognition of the difficulty is one of the reasons why, in all cases cited by respondents, the reviewing courts have affirmed the action of the circuit court.

The majority’s decision appeals to a sense of fairness and is difficult to criticize. Nevertheless, I agree with the petitioner that some improper factors were considered in determining the amount of the award. For that reason, and because I deem a need to exist to clarify the operation of section 15 — 1(a), I write this dissent. I would reverse the order fixing the award and remand for reconsideration.

My major dispute with the majority concerns the interpretation of the opinion in the case of In re Estate of Caffrey (1983), 120 Ill. App. 3d 917, 458 N.E.2d 1147. There, a husband died leaving a probated estate believed to be worth $325,147. The court initially allowed a surviving spouse’s award in the sum of $50,000 and surviving children’s awards totalling $25,000. Then a claim was filed in an amount which brought the solvency of the estate in question. The court heard evidence that the widow had received life insurance proceeds of $326,813, an IRA in the sum of $66,873, a $5,000 death benefit, joint tenancy stock valued at $10,000, and residential property worth $69,607. The children had also received substantially more nonprobated assets. Upon the request of a creditor, the court then reduced the surviving spouse’s award to $20,000 and the children’s awards to $10,000. The widow appealed, but the appellate court affirmed.

In Caffrey, the trial court did consider the nonprobated assets which the widow and children would receive as a result of the decedent’s death, and the appellate court held this was proper. After considering not only the paragraph from that case cited by the majority but also the paragraphs preceding and following it, I deem the determination that nonprobated assets may be considered to be limited to circumstances involved in that case. The most notable circumstance there was the dubious solvency of the decedent’s estate.

The three paragraphs I have described seem to contain the rationale of the court in reaching its decision. They state:

“The parties have represented that this is a case of first impression. We note initially that when requesting the widow and children’s award of $75,000 counsel represented that the award would not jeopardize the estate. Counsel also did not present the court with any written documents on the condition of the estate. If there had been full disclosure of the facts the court would have been better able to make an award based upon the condition of the estate.
The plain meaning of the statute does not support the restrictive view advocated by respondent. We do not believe the legislature intended a rigid and technical limitation to the court’s consideration of the assets left by the decedent in determining the support necessary for the surviving spouse. In our view the court may properly consider nonprobate assets which the surviving spouse has received.
We are not attempting to prevent the respondent from obtaining an adequate widow’s award in compliance with the statute. We hold, however, that under the facts of this case, the trial court was correct in considering nonprobate assets which the widow received in its determination of the sum necessary for her proper support.” (Emphasis added.) Caffrey, 120 Ill. App. 3d at 921-22, 458 N.E.2d at 1150.

As the majority has shown, the middle paragraph in Caffrey seems to make an unqualified statement that nonprobate assets may be considered. However, the first paragraph explains that the large original award, which the court did not criticize, was made at a time when the solvency of the estate was unquestioned. The court recognized the condition of the estate was the reason for the need to reduce the awards. Then, in the third paragraph, the court states the consideration of the nonprobate assets was correct “under the facts of this case.” The facts of the instant case differ from the facts in Caffrey most sharply in that here the condition of the estate was solvent and fully able to satisfy the claims of creditors.

No case has held a surviving spouse is entitled to only a minimum award if the assets received from the solvent estate of a decedent are sufficient to support the survivor for nine months, nor that only the minimum should be awarded if the income from those assets will provide that support. In Strawn v. Strawn (1870), 53 Ill. 263, a widow renounced her husband’s will and took her allowed share of an estate appraised at a value of $500,000. The executor appealed the award of special dower (widow’s award) which constituted a claim superior to that of creditors. The executor contended the award was excessive. The award consisted of some $1,600 worth of furniture and $1,590 in cash. The supreme court affirmed, looking at the needs of the surviving spouse without reference to the considerable estate she had taken. In the case of In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 380, 208 N.E.2d 604, 606, cited by the majority, the court stated: “The fact that the widow has independent means will not bar her from an award.”

No case has been called to our attention which holds that the adequacy of assets owned by the surviving spouse prior to the decedent’s death or the adequacy of income from those assets to enable the survivor to continue the previous life-style negates the ability to receive more than a minimum surviving spouse’s award. The Caffrey court stated that technicalities should not be used to determine property to be considered in deciding upon the amount of a widow’s award. Petitioner’s property received from joint tenancy here differs from most of the nonprobate assets in Caffrey in that here, his joint interest in real estate was obtained in shuffling of properties some of which he had contributed. Thus, here, the court was in effect considering assets he had owned before the decedent’s death. Under the circumstances of the case, I consider the court to have erred in considering petitioner’s joint tenancy real estate which passed by operation of law entirely to him upon the death of the decedent.

The majority also relies on the case of In re Estate of O’Neill (1982), 104 Ill. App. 3d 488, 432 N.E.2d 1111, where the court indicated that Handmacher did not require the award of more than a minimum award to a spouse who had financial independence. However, that was dictum stated in a case where nothing indicated the decedent had been supporting the survivor, and the survivor had left the home of the decedent prior to the death. Here, the surviving spouse was receiving substantial support from the decedent and had never left the marital domicile after the marriage.

No case has been called to our attention holding the length of the marriage is a proper consideration for determination of a surviving spouse’s award. I do not deem O’Neill to so hold. I do not consider the length of marriage to be related to the sum of money necessary to maintain a life-style. Accordingly, the court should not have considered it either.

The present surviving spouse’s award was originally an award for widows. It originated at a time when most women were not employed for money outside the home, and most family property was owned by the male who had supported the family. A strong argument can be made that the award has little use where, as here, the survivor is a person who has been employed and has property of his own. However, if the existence of the surviving spouse’s award continues, clarification is needed to determine who is entitled to it. Clearly, at present, it is not being awarded only to those who need it. Petitioner’s contention he is not receiving the same consideration others in his situation have received is understandable.

In any event, I would reverse and remand here for a reconsideration without reference to the nonprobate property or the length of the marriage.


author: JUSTICE McCULLOUGH

text:
    GREGORY J. BRITT, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—89—0312
    Opinion filed December 28, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Marvin H. Gesell, of Arnold, Gesell & Schwulst, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant, the Secretary of State (Secretary), appeals an order of the circuit court of Sangamon County which reversed its denial of plaintiff’s request for a restricted driving permit (RDP). The circuit court affirmed the Secretary’s denial of plaintiff’s request for restoration of full driving privileges. It ordered the Secretary to issue plaintiff an RDP, but stayed the order pending appeal. The Secretary appeals, contending the circuit court erred in finding its denial of an RDP was contrary to the manifest weight of the evidence. Plaintiff has not filed a cross-appeal.

We affirm.

The Secretary revoked plaintiff’s driving privileges effective June 3, 1982, pursuant to its authority under section 6 — 205(a)(2) of the Illinois Vehicle Code (Code). (Ill. Rev. Stat. 1981, ch. 951/2, par. 6—205(a)(2).) This revocation followed plaintiff’s second conviction for driving under the influence of alcohol (DUI). (Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501.) On April 8, 1988, plaintiff petitioned the Secretary for reinstatement of full driving privileges or, alternatively, issuance of an RDP. A hearing on the petition was held on May 20, 1988. The Secretary introduced plaintiff’s driving record. Beginning April 1975 plaintiff, then a teenager, in a two-year period incurred convictions for speeding, driving too fast for conditions (two violations), no stoplights, and reckless driving. On May 9, 1977, he was convicted of a November 30, 1976, DUI. He had an additional speeding violation, July 29, 1979, and on March 30, 1982, was convicted of DUI December 4, 1981. His license was revoked on June 3, 1982. He has not had a license to drive since that date.

Plaintiff was 32 years old at the time of the hearing. No injuries had occurred in connection with his DUI offenses. He had never been convicted of driving while his license was revoked or suspended. Plaintiff testified he lived with his mother. He worked for a heating and air-conditioning firm. In 1981, he worked as a laborer in a toxic chemical plant. He was divorced in June of 1985. He last consumed alcoholic beverages in 1984. Plaintiff stated he did not believe he presently had a drinking problem. He did not sneak drinks or “fall off the wagon.” He stopped consuming alcohol because of his occupation. Plaintiff believed one could not do heating and air-conditioning repair work, which necessitated being on 24-hour call, and consume alcohol. He also believed he would not start drinking again after restoration of his driving privileges because he had a more positive attitude about himself and was more mature. Plaintiff stated his employer drives him to emergency repair calls. He needs a driving permit to drive a service vehicle.

Plaintiff further stated that he completed an alcohol and substance abuse evaluation in February 1988. He followed the program recommended by the evaluator. He attended alcohol education classes and a 12-hour group intervention session. The evaluator stated he was a Level II problematic user of alcohol. See 92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).

The February 1988 assessment was admitted into evidence. The hearing officer took judicial notice of the file in plaintiff’s prior petition for reinstatement of his driving privileges. On cross-examination, plaintiff admitted that he had read and signed an alcohol and substance abuse evaluation dated November 12, 1986. The hearing officer stated that document would be admitted into evidence. She would consider its recommendations and whether there was any evidence in the record that plaintiff complied with the 1986 evaluator’s recommendations. The file of plaintiff’s prior hearing and the 1986 assessment are not a part of the record on this appeal.

The hearing officer denied plaintiff’s request for restoration of driving privileges and, alternatively, for a restricted driving permit. The Secretary adopted the hearing officer’s findings and recommendations.

Upon review, the findings and conclusions of an administrative agency are considered prima facie true and correct. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56.) Courts may not interfere with an agency’s discretionary authority unless that power is exercised in an arbitrary and capricious fashion, or the decision is contrary to the manifest weight of the evidence. (Murdy, 103 Ill. 2d 384, 469 N.E.2d 1085; Fitzpatrick, 158 Ill. App. 3d 966, 512 N.E.2d 56.) The Secretary’s decision will be found to be contrary to the manifest weight of the evidence only when the reviewing court can find, viewing the evidence in a light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s determination. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929, 933.

The relevant factors in determining whether to issue an RDP are the degree of hardship which deprivation of driving privileges imposes upon the applicant, whether alternative means of transportation are available, and whether issuance of the permit would prove a danger to public safety and welfare. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206(c)(3); Youle v. Edgar (1988), 172 Ill. App. 3d 498, 526 N.E.2d 894; Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295; see also 92 Ill. Adm. Code §§1001.430(b), 1001.440(d), at 3520, 3522 (Supp. 1988).) The relevant inquiry in restricted driving permit cases is the danger to public safety and welfare. Murdy, 103 Ill. 2d at 392, 469 N.E.2d at 1089.

The hearing officer found the driver’s record as submitted was correct, including a finding that the plaintiff’s last arrest for DUI was on December 4, 1981. The hearing officer also found that the plaintiff attended and completed a recognized alcohol-drug remedial education course on March 4, 1988, the plaintiff submitted an alcohol-drug assessment dated January 19, 1988, and the plaintiff is classified a Level II user; the plaintiff testified he has three years of abstinence, he quit drinking due to his occupation, and the plaintiff does not intend to drink in the future; the plaintiff completed the required counseling, the plaintiff has previously entered three inpatient programs (1977, 1977, and 1980), the plaintiff did not complete the first inpatient program but did complete the second two programs; plaintiff is employed by Ronald Aschenbremer, plaintiff has been notified that without driving privileges he will be terminated from employment, he lives three to four miles from his place of employment, he is required to drive as far as 50 miles from his place of employment in the course of his employment-related duties, presently his employer drives him and, in employment-related driving duties, other persons have been doing the driving. The hearing officer also observed the demeanor of the plaintiff to be cooperative.

Upon these findings, the hearing officer concluded that the plaintiff developed a severe alcohol-drug problem, the extent of that problem remaining unclear due to conflicting evidence, the plaintiff failed to provide evidence sufficient to carry his burden of proving that his alcohol-drug problem has been resolved and that the plaintiff failed to carry his burden of proving he has resolved his alcohol-drug problem as he has not documented completion of the treatment recommended to address that problem.

With respect to this last finding, the regulations provide that applicants classified as Level II alcohol users must document successful completion of the intervention plan developed by the evaluator. (92 Ill. Adm. Code §1001.440(b)(2), at 3521 (Supp. 1988).) The evaluator suggested that the program would be 20 hours in length. The plaintiff did provide documentation of successful completion of an intensive group intervention program as he was directed.

With respect to the first two conclusions of the hearing officer, i.e., that the plaintiff developed a severe alcohol-drug problem and the extent of that problem remains unclear due to conflicting evidence, and that he has failed to provide sufficient evidence to carry his burden of proving his alcohol-drug problem has been resolved, we find no basis in the findings máde by the hearing officer. As stated heretofore, the hearing officer found that the plaintiff testified he had three years of abstinence, quit drinking due to his occupation, does not intend to drink in the future, attended and completed the required outpatient counseling, had previously entered three inpatient programs and failed to complete the first inpatient program but completed the-second two programs. The plaintiff has not had driving privileges since June 3, 1982. During this period of time he has not violated any provisions of the Code, specifically driving a motor vehicle while his license was revoked or suspended (DWR).

Plaintiff, in the 10 years prior to his hearing, had been convicted of two offenses, speeding (1979) and DUI (December 1981). We recognize the Secretary, per his regulations, considers the applicant’s total driving record in deciding whether to issue an RDP. (92 Ill. Adm. Code §1001.420(d), at 3519 (Supp. 1988).) However, at some point in time the relative weight of the prior offenses decreases and may no longer justify a finding that restoration of an applicant’s driving privileges will cause harm to public safety and welfare. At some point, even a felon’s background convictions become inadmissible. (Compare, e.g., People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, as discussed in Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56 (McCullough, J., dissenting).) The driving record per se does not support a finding that issuance of a work-restricted RDP would constitute a present danger to public safety and welfare. Sutton, 147 Ill. App. 3d 723, 498 N.E.2d 295.

The Secretary argues its decision is supported by the manifest weight of the evidence because of the conflicting evidence regarding the level of plaintiff’s alcohol use. The record on appeal does not contain the 1986 alcohol and substance abuse evaluation relied upon by the Secretary. This document was before the circuit court and the Secretary. The Secretary, as appellant, has the duty to provide a sufficient record to support its claim. The reviewing court will presume the circuit court’s determination was correct when doubts arise because of an incomplete record. (Fischer v. Mann (1987), 161 Ill. App. 3d 424, 514 N.E.2d 566.) Such a presumption applies in the instant case.

The Secretary also argues its determination is supported by the fact that plaintiff failed to document compliance with the recommended treatment program in the 1988 evaluation. The evaluator in 1988 recommended plaintiff engage in a significant group intervention program. He stated the program should be 20 hours long. Plaintiff documented completion of 12 hours of group intervention program, in a program recognized by the Secretary. The regulations provide applicants classified as Level II alcohol users must document successful completion of the intervention plan developed by the evaluator. (92 Ill. Adm. Code §1001.440(b)(2), at 3521 (Supp. 1988).) These regulations have the force and effect of law. (Youle, 172 Ill. App. 3d 498, 526 N.E.2d 894.) Here, plaintiff provided documentation of successful completion of an intensive group intervention program, as he was directed. The program, however, was 12 hours in length, rather than 20 hours in length. Failure to complete a program of the required length is a de minimis variation under the circumstances presented by this case. Plaintiff complied with the recommendations of the evaluator.

With respect to hardship, the hearing officer found plaintiff would lose his employment absent restoration of driving privileges, but made no specific conclusions concerning that matter. However, it is apparent from her findings that the hardship was proved by clear and convincing evidence.

As stated in Franz v. Edgar (1985), 133 Ill. App. 3d 513, 522, 478 N.E.2d 1165, 1171:

“Our review of the record persuades us that the Secretary’s conclusion that plaintiff would endanger the public safety and welfare is not supported by substantial evidence. Initially, we find nothing in the record that would suggest that plaintiff has a current drinking problem. To the contrary, the record showed that any alcohol abuse problem the plaintiff may have had was in the past. It was uncontroverted that he successfully completed an alcohol information and driving safety program and had not consumed alcohol at all in the past year.”

The evidence submitted in this case is much stronger than that in Franz concerning the plaintiff’s complying with the requirements of the Secretary of State in order to be granted an RDP. Additionally, it should be noted that in Franz this court was concerned with a regulation of the Secretary of State that automatically denied a request for a permit when there were two DUI’s within a five-year period, and a statute passed by the legislature required a revocation for a one-year period. The legislation in effect at the time of the revocation in this case was similar insofar as the direction to the Secretary of State that he “shall not suspend a drivers license or permit or privilege to drive a motor vehicle on the highways for a period of more than 1 year.” (Ill. Rev. Stat. 1985, ch. 951/2, par. 6—208(a).) Legislation effective January 1, 1988, provides that a person convicted of committing a second violation of section 11 — 501 may not make application for a license until after the expiration of three years from the effective date of the most recent revocation. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 208.) Applying the new legislation, the three-year period would have expired on June 3, 1985. Similarly, as stated in Franz:

“Administrative discretion granted by statute to make rules is to be exercised within the terms of the statute, and the exercise of discretion in administering the rule is to be determined upon evidence of record and cannot be exercised arbitrarily or capriciously in disregard of matters of evidence.” Franz, 133 Ill. App. 3d at 520, 478 N.E.2d at 1169.

In summary, the decision of the Secretary of State is against the manifest weight of the evidence, the findings of the hearing officer specifically found hardship as well as hours of employment of the plaintiff and the decision of the circuit court should be affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.