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The Alcohol / Drug Revoked or Suspended Driver and Proceedings Before the Office of the Secretary of State - Part 2

IV. Formal Hearings

A. General Considerations

1. Request for Hearing

All formal hearings are conducted in Springfield, Chicago, Mount Vernon and Joliet. A request for formal hearing is initiated by a request in writing and payment of a fee of $50.00. The Secretary of State is required to set the hearing date within ninety (90) days of the request for hearing. Copies of the Notice of Hearing will be sent to both counsel and the client. 625 ILCS 5/2-118(a); 92 Ill. Administrative Code, ch. II, sec. 1001.70.

2. Substitution of Assigned Hearing Officer

Under 92 Ill. Administrative Code, ch. II, sec. 1001.100(b), a petitioner may seek a substitution of a hearing officer by written petition. Even if the petition is denied, the petitioner may withdraw a request for hearing and thereafter file a new request, as the result of which a new hearing officer will be assigned.

3. Authority of Hearing Officer

The hearing officer has the authority to rule on all motions, administer oaths, to subpoena witnesses or documents at the request of any party, to examine witnesses and to rule on the admissibility of testimony and evidence. 92 Ill. Admin. Code, ch. II, sec. 1001.100(d).

4. Rules of Evidence and Burden of Proof

Generally speaking, the technical rules of evidence do not apply at formal hearings. Regardless of the existence of any common law or statutory bar to the admissibility of certain evidence, such evidence is admissible so long as it is of the sort commonly relied upon by prudent people in the conduct of their affairs. However, irrelevant or immaterial evidence will be excluded. See 92 Ill. Administrative Code, chap. II, sec. 1001.100(d).

The burden of proof rests with the petitioner. The standard is the preponderance of the evidence in non-alcohol/drug-related hearings and in alcohol/drug-related hearings the standard is clear and convincing evidence. 92 Ill. Administrative Code, ch. II, sec. 1001.100(s), 92 Ill. Administrative Code, ch.II, sec. 1001.400(b)2).

5. Record of Proceedings

Present at the hearing besides the hearing officer, is an attorney who acts on behalf of the Secretary of State and, as a practical matter, as an adversary to the petitioner. A permanent record of the proceedings is made by means of a court stenographer or the use of an electronic recording device. 92 Ill. Administrative Code, chap. II, sec. 1001.100(u).

B. Conduct of the Hearing

The actual conduct of the hearing as well as the specific procedure utilized varies to a certain extent upon the personal dictates of the hearing officer. For example, some hearing officers will allow the attorney for the Secretary of State to proceed with examination of the petitioner before the attorney for the petitioner is allowed to proceed. The majority of hearing officers, however, follow the practice of allowing the petitioner's counsel to proceed with questioning first and the attorney for the State to thereafter cross‑examine. If counsel for the petitioner is uncertain as to any procedural variables, he/she should request a pre‑trial conference to clarify these matters. Regardless of the personal preferences of the hearing officer, it can generally be said that the following elements are part of every formal hearing.

1. Opening Statement

Counsel will be allowed to make an opening statement. If counsel chooses to make an opening statement, the relevant issues should be outlined, primarily as determined by, e.g., the client's driving history, history of alcohol/drug use, or other relevant facts and what it is expected that the evidence to be presented will demonstrate. 92 Ill. Administrative Code, ch.II, sec. 1001.100(p).

2. Secretary of State's Offer of Documentary Evidence

The attorney for the Secretary of State will offer into evidence the request for hearing, notice of hearing and the client's driving record (including a PDPS national database record check) together with documentation for supporting the record. The attorney for the Secretary of State will also customarily attempt to introduce, if available, prior alcohol evaluations submitted to the Secretary of State by the client, prior orders from prior hearings and, if available copies of any traffic accident reports on file with the Secretary of State or the Illinois Department of Transportation (particularly in cases involving death or serious personal injury).

Counsel should object to the introduction of a prior order from a formal hearing if it contains findings of fact, conclusions or opinions that are not accurate. Such objection should be based upon the fact that the formal hearing is a de novo proceeding and that therefore matters contained in a prior order are irrelevant and prejudicial. Although the hearing officer will nevertheless overrule such an objection and take notice of all prior formal hearings, counsel should still make an objection in order to preserve the record for review. See 92 Ill. Administrative Code, ch. II, sec. 1001.360(a).

With respect to accident reports, an objection, if appropriate, may be made upon the basis of lack of foundation, hearsay and the confidentiality accorded such reports under Illinois law. 625 ILCS 5/11‑412.

3. Driver's Prima Facie Case

The presentation of the client's case‑in‑chief should include, at a minimum, the following:

(a) Direct examination of the client as to: marital status; age; number and ages of dependents; educational background; recitation of facts and circumstances appearing on the driving record; efforts at rehabilitation of driving habits and/or attitude including attendance at a driver education or remedial education program; involvement in any alcohol/drug abuse treatment or remedial education programs (if alcohol/drug use is in issue); involvement in any ongoing counseling or self‑help group such as Alcoholics Anonymous (if alcohol/drug use is in issue); drinking / drug use pattern prior to the last DUI arrest; change in drinking / drug use habits and why any change occurred (again, if alcohol / drug use us in issue); nature of employment, including the days, hours and radius driving is required; whether driving is required only to and from work or also on the job; nature of the hardship (if hardship is an issue) availability of public transportation; how driving needs have been met since the loss of driving privileges; details regarding any arrest(s) for driving while revoked / suspended;

(b) Introduction of written verification of client's completion of any driver improvement or remedial education program and introduction of the written alcohol evaluation / treatment documentation (if applicable);

(c) Introduction of character reference letters; drinking habit verification letters; abstinence letters (if applicable); letters verifying AA attendance (if applicable) and employment verification letters;

(d) Examination of any witnesses appearing on the client's behalf.

4. Cross‑Examination of Driver

After the attorney for the Secretary of State has had an opportunity to cross‑examine the client and each witness appearing on his behalf, counsel will be given an opportunity for redirect examination of his witness. Again, counsel should remember at all times that the burden of proof rests with the client and that the standard of proof is the preponderance of evidence or clear and convincing evidence (See 1.41 above). 92 Ill. Administrative Code, ch. II, sec. 1001.100(r),(s); 92 Ill. Administrative Code, ch. II, sec. 1001.400(b)2).

5. Closing Statements and Close of the Hearing

Counsel for petitioner and the Secretary of State will be granted an opportunity to make a closing statement. If counsel chooses to make a closing statement, its objective should be to summarize the evidence presented as it relates to the ultimate issues with primary emphasis on the question of whether the petitioner has met his/her burden of demonstrating that he/she is not a risk to the public safety and welfare.

Upon the close of the hearing, the hearing officer will announce that the decision will be taken under advisement and that a recommendation will be made to the Secretary of State's review representative. At the time a decision is rendered, both counsel and the client will receive copies of the final written order. The Order will contain the recommendation of the hearing officer, decision of the Secretary of State, findings of fact, conclusions of law, and recitation of applicable statutes and rules. The Secretary of State is required to render a decision within ninety days of the conclusion of the hearing. 625 ILCS 5/2-118(d); 92 Ill. Administrative Code, ch. II, sec. 1001.110.

V. Reinstatement and Issuance of Restricted

Driving Permits

A. Statutory References

The Illinois Vehicle Code ('I.V.C.'), 625 ILCS 5/1-101, et. seq. grants the Secretary of State authority to fully reinstate driving privileges or to grant restricted driving permits.

1. Issuance of Restricted Driving Permit after Revocation 625 ILCS 5/6‑205(c)(1), in part, that:

….Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether the recommendation is made by the court may, upon application, issue to the person a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner's residence and petitioner's place of employment or within the scope of the petitioner's employment related duties, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to a medical facility for the receipt of necessary medical care or to allow the petitioner to transport himself or herself to and from alcohol or drug remedial or rehabilitative activity recommended by a licensed service provider, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to classes, as a student, at an accredited educational institution, or to allow the petitioner to transport children, elderly persons, or disabled persons who do not hold driving privileges and are living in the petitioner's household to and from daycare; if the petitioner is able to demonstrate that no alternative means of transportation is reasonably available and that the petitioner will not endanger the public safety or welfare; provided that the Secretary's discretion shall be limited to cases where undue hardship, as defined by the rules of the Secretary of State, would result from a failure to issue the restricted driving permit.

2. Issuance of Restricted Driving Permit after Suspension 625 ILCS 5/6‑206(c)(3) of the I.V.C. provides, in part, that:

….the Secretary may upon application, to relieve undue hardship (as defined by the rules of the Secretary of State), issue a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner's residence and petitioner's place of employment or within the scope of the petitioner's employment related duties, or to allow the petitioner to transport himself or herself, or a family member of the petitioner's household to a medical facility, to receive necessary medical care, to allow the petitioner to transport himself or herself to and from alcohol or drug remedial or rehabilitative activity recommended by a licensed service provider, or to allow the petitioner to transport himself or herself or a family member of the petitioner's household to classes, as a student, at an accredited educational institution, or to allow the petitioner to transport children, elderly persons, or disabled persons who do not hold driving privileges and are living in the petitioner's household to and from daycare. The petitioner must demonstrate that no alternative means of transportation is reasonably available and that the petitioner will not endanger the public safety or welfare.

3. Reinstatement After Revocation

Once a license is revoked, reinstatement is not automatic and will not occur until the Secretary of State, upon application, makes a determination that to grant reinstatement will not endanger the public safety or welfare, O'Neil v. Ryan, 301 Ill. App. 3d 392, 703 N.E. 2d 511, 234 Ill. Dec. 650 (1st Dist. 1998).

625 ILCS 5/6-208(b) of the Vehicle Code contains the following restrictions on applications for reinstatement:

a. Persons convicted of the offense of leaving the scene of a motor vehicle accident involving death or personal injury (625 ILCS 5/11-401(b)); may not make application for reinstatement for a period of three years from the date of revocation.

b. Persons convicted of the offense of reckless homicide (720 ILCS 5/9-3) may not make application for reinstatement for a period of two years from the date of revocation or for a period of two years from the date of release from a period of imprisonment, whichever is later.

c. Persons convicted of committing a second violation within a period of twenty years of:

1. driving while under the influence (Vehicle Code Sec. 11-501 or a similar provision of a local ordinance);

2. leaving the scene of a fatality or personal injury accident (625 ILCS 5/11-401(b));

3. reckless homicide (720 ILCS 5/9-3); or

4. any combination of the above.

may not make application for reinstatement for a period of five years from the date of revocation.

d. Persons convicted of committing a third violation of the offenses listed in paragraph c above or a combination thereof may not make application for reinstatement for a period of ten years from the date of revocation.

Please note that similar out-of-state offenses are included and that the 20-year period in paragraph c above is calculated using the date the offense was committed. 625 ILCS 5/6-208(b)(2)(3).

It should be further noted that despite these extended periods of revocation, such persons may still apply for a restricted driving permit. See 625 ILCS 5/6-205(c).

Effective January 1, 1999, persons convicted of committing a fourth or subsequent violation of the offenses listed in paragraph c above are permanently barred from seeking reinstatement in the future. P.A. 90-738. The disqualifying offense must have occurred after the January 1, 1999 effective date. See 625 ILCS 5/6-208(b)(4).

This prohibition extends to the issuance of a restricted driving permit. See 625 ILCS 5/6-205(c)(1) and 6-206(3).

4. Limitations on Relief During Period of Statutory Summary Suspensions and Revocations

The Secretary of State is prohibited from issuing driving privileges where:

a. The person has a summary suspension in effect and is a second offender as defined in 625 ILCS 5/11-500;

b. During the first year of revocation where the person is revoked as the result of a second or subsequent conviction for DUI.

625 ILCS 5/6-205 and 6-206.

B. Rules and Regulations of the Office of the Secretary of State

The Office of the Secretary of State has promulgated extensive rules and regulations governing not only the procedural aspects of its hearings but also governing the issuance of restricted driving permits and reinstatements. 92 Ill. Administrative Code, ch. II, sec. 1001 et. seq.

These rules are specific and strictly enforced by the Secretary of State. Failure to comply with any applicable rule may result in denial of a request for relief. Accordingly, the attorney should carefully review these rules and determine the applicability of those rules to the client's particular case.

For example, no consideration for relief will be given to an individual who has a traffic case pending against him/her. 92 Ill. Administrative Code, ch. II, secs. 1001.420(g).

A person otherwise eligible for full reinstatement of his/her driver's license and privileges usually will only be issued a restricted driving permit on a probationary basis prior to further consideration for full reinstatement. (92 Ill. Administrative Code, ch. II, sec. 1001.420(i). Generally, a person is required to drive on a permit for at least 75% of the time for which it was issued before being considered for reinstatement (and provided that such person is otherwise eligible for reinstatement). 92 Ill. Administrative Code, ch. II, sec. 1001.430(i).

The rules also specify those factors to be considered by the Secretary of State in determining whether and what type of relief should be granted. Factors such as the client's age; prior offenses for driving while suspended/revoked; accident history; demeanor and credibility of client; credibility of documentary evidence; driving history in other states; client's overall prior driving record; efforts at rehabilitation; and degree of hardship will be considered among others. 92. Ill. Administrative Code, ch. II, sec. 1001.420(e) and 1001.430(c).

C. Applicable Case Law

1. Restricted Driving Permit ‑ Balancing the Interests of the Public Safety and Welfare v. Under Hardship

In Illinois, once driving privileges are revoked, the restoration of such privileges is not automatic. Murdy v._Edgar, supra; People_v._Turner, 64 Ill. 2d 183, 186 (1976).

In Foege_v._Edgar, supra, the First Appellate District, in a case of first impression, was called upon to consider under what circumstances the Secretary of State should be required to grant, upon application, a restricted driving permit.

Although the statute gives the Secretary of State discretion to issue a restricted driving permit only in cases where undue hardship would result from a failure to issue a restricted driving permit, we believe that this limitation does not mandate that the Secretary of State issue a restricted driving permit merely because undue hardship would result. Plainly, the language of the statute is permissive only and not mandatory. Foege, 65 Ill. Dec. 753 at 755.

This case has subsequently been cited with approval by the only Illinois Supreme Court case considering the issues raised in these types of hearings. Murdy_v. Edgar, supra, later affirmed by the Illinois Supreme Court contains a good discussion regarding the standards governing the issuance of restricted driving permits.

Granting a restricted driving permit is permissive and not mandatory, and before a restricted permit is issued, the Secretary must weigh the public interest against the hardship suffered by the applicant. Murdy, 73 Ill. Dec. 722 at 726.

2. Reinstatement

The Court in Murdy_v._Edgar, supra, discussed not only the standards governing the issuance of restricted driving relief, but also went on to contrast these standards with those governing the granting of full reinstatement under 625 ILCS 5/6‑208(b):

The standard to be applied by the Secretary under section 6‑208 of The Illinois Vehicle Code is similar to that involved when issuing a restricted driving permit. In each case the pertinent inquiry is the danger to the public in allowing the applicant to drive. Under sections 6‑205 and 6‑206, however, hardship is to be taken into consideration apart from public safety and welfare. Section 6‑208 mandates no consideration of hardship to the applicant. A further difference is in the scope of rights granted. Under section 6‑205 and 6‑206, a restricted driving permit may only be issued for driving between a residence and a place of employment or other proper limits. Relief under section 6‑208 contains no limitations. Murdy, 73 Ill. Dec. 722 at 727.

3. Consideration of the Scope of Right to Be Granted ‑ The Restricted Driving Permit v. Reinstatement.

It apparently was this distinction regarding the scope of driving rights to be accorded to a person, i.e., whether they are granted only a restricted driving permit rather than full reinstatement, that served as the basis for the Court's decision in Breiner v._Edgar, 130 Ill. App. 3d 1010, 474 N.E. 2d 1373 (Ill. App. 4th Dist. 1985). In that case, the Court denied the plaintiff's request for full reinstatement on the grounds that plaintiff had failed to demonstrate that he would not be a risk to the public safety and welfare. The Court went on, however, in granting the plaintiff's request for a restricted driving permit, to state:

. . . the Secretary argues that even if the likely loss of plaintiff's full‑time employment constitutes an undue hardship, the Secretary's decision was proper because, based on his past driving record, plaintiff would pose a serious threat to the public safety and welfare which would out‑weigh any hardship suffered by plaintiff.

We might agree with this argument if plaintiff were being granted unlimited driving privileges. However, we order that the Secretary issue a restricted driving permit to plaintiff which would allow him to drive to and from work, and to do any reasonable necessary driving required by his work. Such restrictions will allow plaintiff to retain his full‑time employment, but will prevent the type of recreational nocturnal excursions which previously resulted in plaintiff's tragic collision.

Accordingly, the Court held that the Secretary's denial of the restricted driving permit was contrary to the manifest weight of the evidence. Breiner, 76 Ill. Dec. 176 at 180.

4. Completion of Risk Education

As discussed at (1.16) above, the Secretary of State requires that persons whose licenses/privileges have been suspended or revoked as the result of an alcohol related offense, attend a duly licensed driver risk education course (except for those classified as High Risk (Dependent) or (Non-Dependent) under DASA standards). In Sheldon_v. Edgar, 131 Ill. App. 3d 489, 475 N.E. 2d 956 (Ill. App. 1st Dist. 1985), the Court held that the failure or refusal of an applicant to attend or participate in an alcohol‑related driver risk education may constitute a lawful basis upon which to deny a request for the reinstatement of driving privileges.

5. Demonstration of Undue Hardship

The failure of a petitioner to demonstrate an undue hardship may constitute the sole basis to deny a request for issuance of a restricted driving permit, regardless of whether the petitioner has successfully demonstrated that he/she is not a risk to the public safety and welfare. In Clingenpeel_v._Edgar, 133 Ill. App. 3d 507, 478 N.E. 2d 1172 (Ill. App. 4th Dist. 1985), the Court stated that where the plaintiff lived only one mile from his place of employment, that he was able to get to work since his wife drove him every morning and he was generally able to obtain a ride home in the evening and further, that he was not required to drive on the job during the day, the plaintiff had failed to demonstrate an undue hardship. Therefore, the Court held, the trial court's granting of a restricted driving permit to him was erroneous and reversed.

In Breiner_v._Edgar, supra, the Court held that an employer's affidavit and applicant's testimony that he would lose his current employment without the ability to drive constituted an undue hardship and ordered the Secretary of State to grant him a restricted driving permit.

In Agans_v._Edgar, 97 Ill. Dec. 270, 492 N.E. 2d 929 (Ill. App. 4th Dist. 1986), the Court affirmed the Secretary of State's denial of a restricted driving permit to an individual who was capable of walking to work. The Court also rejected the plaintiff's claim that he would be in a position to obtain a better paying position if he had a hardship license in the absence of evidence of potential jobs other than his own claims made at the hearing.

Plaintiff offered no evidence of job applications for other positions, nor invitations to interview from potential employers, nor why they would require him to drive. (See Breiner_v._Edgar, 130 Ill. App. 3d 1010, 86 Ill. Dec. 176, 474 N.E. 2d 1373 (1985)) (where plaintiff brought to the hearing affidavits from his present employer requiring plaintiff to have a driver's license or face termination).) Plaintiff demonstrates no undue hardship with regard to his employment. Agans, 97 Ill. Dec. 270 at 276.

6. Required Period of Abstinence

As noted previously, 92 Ill. Administrative Code, ch. II, sec. 1001.440(e) provides, in part, that:

Petitioners classified as Level III Dependent or any other Petitioner with a recommendation of abstinence by a DASA licensed evaluator or treatment provider, should have a minimum of twelve (12) consecutive months of documented abstinence. Waivers are discretionary when considering an RDP but should be no less than six (6) months continuous abstinence. Documentation of abstinence must be received from at least three (3) independent sources. The Hearing Officer shall determine the weight to be accorded the documentation, taking into account the credibility of the source and the totality of the evidence adduced at the hearing.

In Agans_v._Edgar, supra, the plaintiff was an alcoholic who had several prior unsuccessful attempts at abstinence and who had thereafter; entered and successfully completed an alcohol rehabilitation program and was involved in aftercare group sessions. As of the time of the hearing before the Secretary of State, the plaintiff had been abstinent from alcohol for a period of two and one‑half months. In affirming the State's decision to deny the plaintiff driving relief, the Court said:

We note plaintiff's heavy commitment to alcohol abuse support groups. We also acknowledge the optimistic opinion on the most recent alcohol assessment that plaintiff has a "strong handle on his recovery." We applaud and encourage plaintiff in his endeavors to master his addiction to alcohol. We agree with plaintiff that he has taken every reasonable step to combat his addiction. We cannot say, however, that the passage of two and one‑half months since plaintiff's commitment to these activities is a sufficient period of time to conclude that plaintiff has no current alcohol problem. Agran, 97 Ill. Dec. 270 at 275.

VI. Administrative Review

A. Introduction

Decisions from informal hearings do not constitute final administrative decisions and therefore may not be the subject of an administrative review action to the Circuit Court. Only decisions from formal hearings constitute final administrative decisions from which administrative review may be taken. 735 ILCS 5/3‑101 ( Administrative Review Act, hereinafter referred to as the ‘ARA’); 92 Ill. Administrative Code, ch. II, sec. 1001.360(a).

All final administrative decisions of the Secretary of State are subject to administrative review in the Circuit Court. 625 ILCS 5/2‑118(e); 735 ILCS 5/3‑101 et. seq.

B. Preparation and Filing of Complaint

1. Time and Place of Filing and Method of Service

A complaint for administrative review must be filed and summons issued within thirty‑five (35) days from the date a copy of the decision is served upon the affected party. Service is defined as the time the decision is deposited in the mail. Section 3‑103 of the A.R.A. The complaint must be filed either in the Circuit Court of Cook County or Sangamon County. 625 ILCS 5/2‑118.1. In Cook County, such complaints are filed in the Chancery Division.

2. Basis of Complaint

The complaint should set forth the grounds upon which the plaintiff seeks to overturn the decision of the Secretary of State and must do so upon motion of the state or the court. Section 3‑108 of the A.R.A.

In the author's opinion, while it may be legally sufficient to merely allege that the decision of the Secretary of State is contrary to law or against the manifest weight of the evidence (unless otherwise ordered by the court), a better practice is to specifically set forth, in separate counts, the grounds upon which the complaint is based, e.g.:

(1) The specific reasons that the plaintiff alleges the decision is contrary to law or against the manifest weight of the evidence and the specific reasons therefore;

(2) That the plaintiff alleges the decision is arbitrary, capricious and constitutes an abuse of the discretion vested in the Secretary of State and the specific reasons therefore;

(3) Violation of the provisions of the Administrative Procedures Act ( 5 ILCS 100/1-1, et.seq.), e.g.:

(a) Failure to serve a proposal for decision upon the petitioner or give petitioner an opportunity to file an exception to an adverse decision where the person(s) rendering the final decision in the matter did not hear the matter themselves, nor were provided with record of the entire proceedings before rendering such decision. See Section 1013 of the Administrative Procedures Act (supra); or

(b) Failure to accompany findings of fact with a concise and explicit statement of the underlying facts in support thereof. See Section 1014 of the Administrative Procedures Act (supra).

C. Filing of the Answer and Discovery

The Secretary of State is represented in administrative review proceedings by the Attorney General who must file its appearance within thirty‑five (35) days of the service of the complaint and, unless otherwise ordered or stipulated, file an answer which consists of the entire record of proceedings. Rule 291(c) of the Rules of the Supreme Court; 735 ILCS 5/3‑108(b).

The right to discovery, as well as the procedural rules governing discovery, are equally applicable to administrative review proceedings as to other civil proceedings. The right to discovery becomes particularly important if the plaintiff is attempting to establish, e.g., the failure of the Secretary of State to follow or abide by the provisions of the Administrative Procedures Act since in most cases such failures are not evident or plain from a review of the record of proceedings.

D. Hearing on the Complaint

At the time of the hearing on the Complaint for Administrative Review, the Court generally reviews the complaint, the record of proceedings and argument of counsel in open court. Counsel may not attempt to introduce and the court may not entertain new or additional evidence or testimony on matters in issue before the administrative agency. 735 ILCS 5/3‑110; Franz_v._Edgar, 133 Ill. App. 3d 513, 478 N.E. 2d 1165 (Ill. App. 4th Dist. 1985).

E. Decision of the Court

Pursuant to the provisions of 735 ILCS 5/3‑111, the Circuit Court may dispose of the Complaint for Administrative Review in one of several different ways:

(1) Affirm or reverse the decision in whole or in part;

(2) Reverse and remand the decision in whole or in part, and in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper;

(3) Remand

(a) to affirm or reverse the decision in whole or in part;

(b) where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper;

(c) where a hearing has been held by the agency, to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just. However, no remandment shall be made on the ground of newly discovered evidence unless it appears to the satisfaction of the court that such evidence has in fact been discovered subsequent to the termination of the proceedings before the administrative agency and that it could not by the exercise of reasonable diligence have been obtained at such proceedings; and that such evidence is material to the issues and is not cumulative; 735 ILCS 5/3‑111 (5‑7).

Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the court that such error or failure materially affected the rights of any part and resulted in substantial injustice to him or her. 735 ILCS 5/3‑111(b).

F. Applicable Case Law

1. Review of Findings and Conclusions of Agency

The findings and conclusions of an administrative agency are presumed to be prima facie true and correct. 735 ILCS 3‑110.

This provision has been interpreted to mean that a court upon administrative review will not interfere with the discretionary authority of an administrative agency unless the agency is found to have acted in an arbitrary or capricious manner in the exercise of its authority or that the decision of the agency is contrary to the manifest weight of the evidence appearing in the record before the agency. Murdy_v._Edgar, supra; Eastman_Kodak_Co._v._Fair Employment_Practices_Com, 86 Ill. 2d 60, 426 N.E. 2d 877 (1981).

2. Manifest Weight Test

A reviewing court is not to reweigh the evidence or make an independent determination of the facts. The sole function of the court is to ascertain whether the findings of the agency is contrary to the manifest weight of the evidence.Menning_v._Department_of_Registration_and_Educa­tion, supra; Murdy_v._Edgar, supra.

The courts have attempted to define the phrase "mani­fest weight of the evidence" in various ways:

In order to set aside the agency decision the reviewing court must find that all "reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous.

The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In O'Boyle_v._Personnel_Board, 119 Ill. App. 3d 648, 456 N.E. 2d 998 (1983), the court said:

The fact that an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency's decision . . . . . . . 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 on judicial review. 119 Ill. App. 3d 648 at 653 ‑ 654; 456 N.E. 2d 998 at 1002‑3.

3. Court Bound by Record of Proceedings

In determining whether there is sufficient evidence to support an administrative decision, courts of review will consider only that evidence appearing in the record of

proceedings before the administrative agency. Franz_v. Edgar, supra; Green_v._Edgar, 104 Ill. Dec. 533, 502 N.E. 2d 1193 (Ill. App. 1st Dist. 1986).

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