                                                Filed: 4/7/06   NO.
4-05-0237

                       IN THE APPELLATE COURT

                              OF ILLINOIS

                           FOURTH DISTRICT

BRITTNEY A. WEBB,                       ) Appeal from
          Plaintiff-Appellant,          ) Circuit Court of
          v.                            ) Sangamon County
JESSE WHITE, Secretary of State,        ) No. 04MR378
State of Illinois,                      )
          Defendant-Appellee.           ) Honorable
                                        ) Leo J. Zappa, Jr.,
                                        ) Judge Presiding.
_________________________________________________________________

            PRESIDING JUSTICE TURNER delivered the opinion of the

court:

            Plaintiff, Brittney A. Webb, filed an action in the

Sangamon County circuit court for administrative review of the

decision of defendant, Jesse White, Illinois Secretary of State

(Secretary), denying her petition for rescission or modification

of the 12-month suspension of her driver's license and privi-

leges.   The circuit court affirmed the Secretary's decision.

Plaintiff appeals.    We reverse.

                             I. BACKGROUND

            On December 7, 2003, plaintiff and several friends went

to the High Dive, an establishment that serves liquor in Cham-

paign, Illinois, to dance.    Plaintiff was 20 years old at the

time but could enter the establishment because she was over the

age of 19.    The friends accompanying plaintiff were also under

the age of 21.    They sat around a table and then plaintiff "and a

couple of girlfriends went to the dance floor" and danced for 15
to 20 minutes.   Nobody at the table had ordered any alcohol prior

to them dancing.   Plaintiff saw her friend Joey when they re-

turned to the table.   Plaintiff took two or three "big gulps" of

his drink, which she thought was Pepsi because Joey was 20 years

old and did not have "a record of drinking there."   After taking

her big gulps, she realized it was Captain Morgan and Coke.

           Approximately 30 minutes later, the Champaign police

conducted a "raid" to catch underage drinkers.   Although plain-

tiff denied having the cup with the alcohol when the police
arrived, the ordinance violation report (OVR) stated "subject was

found in High Dive with a mixed drink."   Plaintiff took a porta-

ble breath test and registered a 0.005 blood-alcohol concentra-

tion (BAC).   A police officer issued plaintiff an OVR charging

her with violating section 5-65(a) of the Municipal Code of

Champaign (Municipal Code) (Champaign Municipal Code _5-65(a)

(2002)).   Section 5-65(a) of the Municipal Code prohibits the
purchase or possession of alcohol by persons under 21 years of

age.   The OVR gave plaintiff notice to appear in Champaign County

circuit court on January 23, 2004, if she did not pay the $280

fine by December 28, 2003.

           On January 14, 2004, the City of Champaign (City) filed

a complaint alleging plaintiff violated the Municipal Code.     On

February 6, 2004, plaintiff pleaded guilty.   On March 28, 2004,

the Secretary suspended plaintiff's driver's license and driving

privileges for 12 months pursuant to section 6-206(a)(38) of the

Illinois Vehicle Code (625 ILCS 5/6-206(a)(38) (West 2002)).

                               - 2 -
Section 6-206(a)(38) of the Vehicle Code gives the Secretary the

discretionary authority to suspend or revoke the driving privi-

leges of any person without preliminary hearing upon a showing

that the person has been convicted of a violation of section 6-20

of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6-20 (West

2002)) or a similar local ordinance.     The docket sheet reflects

that on April 16, 2004, the City represented to the court that

the matter had been satisfied and plaintiff had paid her $280

fine and court costs.    On the City's motion, the cause was
dismissed.

             After an informal hearing, the Secretary issued plain-

tiff a restricted driving permit (RDP).    On July 28, 2004, the

Secretary held a formal hearing on plaintiff's application for

"driving relief."    Plaintiff sought the rescission or early

termination of the suspension otherwise set to terminate on March

28, 2005.
             The hearing officer found plaintiff's testimony she

only took a few gulps was not credible because the friends she

was with also tested positive for alcohol.     This indicated the

group went to the High Dive with the intention of consuming

alcohol.    The hearing officer concluded plaintiff failed to

submit sufficient evidence to warrant rescission or modification

of the order of suspension and recommended plaintiff's petition

be denied.    On August 9, 2004, the Secretary adopted the hearing

officer's findings of fact, conclusions of law, and recommenda-

tions, and denied plaintiff's petition.


                                 - 3 -
            On September 10, 2004, plaintiff filed a complaint in

the Sangamon County circuit court seeking administrative review

of the Secretary's decision.

                            II. ANALYSIS

            On appeal, plaintiff argues (1) the Secretary's deci-

sion was improper as a matter of law and (2) the Secretary abused

his administrative discretion in not rescinding or substantially

modifying the suspension.    We agree with plaintiff's second

argument.
            Although neither party raises the issue, we initially

note it can be argued this case is moot.    The record indicates

plaintiff's suspension was to end in March 2005.    Further,

Champaign dismissed the case against defendant after she paid her

fines.   Thus, the violation of the Municipal Code is no longer on

her record.    However, moot issues may be considered under the

public-interest exception to the mootness doctrine.    In re Louis

S., 361 Ill. App. 3d 774, 777, 838 N.E.2d 226, 230 (2005).

Inasmuch as the issue is the kind likely to recur and evade

review given the short duration of the action, we conclude the

case comes within a narrow exception to the mootness doctrine.

See People v. Anderson, 167 Ill. App. 3d 308, 310, 521 N.E.2d
148, 149 (1988) (applying exception to mootness doctrine when

summary suspension had already ended).

            On appeal from the circuit court's judgment, we review

the Secretary's decision and not that of the circuit court.     See

Gumma v. White, 345 Ill. App. 3d 610, 618, 803 N.E.2d 130, 137


                                - 4 -
(2003).

          Section 6-206(a)(38) of the Vehicle Code gives the

Secretary the discretion to suspend or revoke the driving privi-

leges of a person under 21 years of age if that person is con-

victed of a violation of section 6-20 of the Liquor Control Act

or a similar provision of a local ordinance.     625 ILCS 5/6-

206(a)(38) (West 2002).   As stated, the Secretary suspended

plaintiff's driver's license for 12 months pursuant to section 6-

206(a) of the Vehicle Code.   Our research revealed no cases
involving the suspension of a minor's license pursuant to section

6-206(a)(38) of the Vehicle Code.      However, based on the facts

present in this case, we conclude the Secretary abused his

discretion under section 6-206(a) of the Act by suspending

plaintiff's driving privileges for 12 months.

          Section 1001.460(d) of Title 92 of the Illinois Admin-

istrative Code discusses requests for modification or revocations
and suspensions of driving privileges and states the following in

pertinent part:

          "[t]he period of a discretionary suspension

          may be reduced for good cause shown.     Factors

          to consider include prior revocations or

          suspensions *** and the seriousness of the

          offenses.   The petitioner must demonstrate

          that he/she is a low risk for repeating

          his/her behavior in the future.     Other fac-

          tors may be considered by the hearing offi-


                               - 5 -
           cer."   92 Ill. Adm. Code _1001.460(d) (Conway

          Greene CD-ROM June 2003).

          Here, plaintiff has no prior revocations or suspen-

sions.   Plaintiff was not driving or even in a vehicle when

approached by the police.    She voluntarily submitted to testing,

thereby conducting herself in a manner favored by the law were

she a driver under the zero-tolerance statute.    The offense to

which plaintiff pleaded guilty is not a serious one in the City

of Champaign's eyes, for it dismissed the complaint after plain-

tiff paid her fine.    Further, as discussed below, the 12-month

suspension of plaintiff's driving privileges is a much harsher

punishment than she would have received had she been driving with

the same alcohol concentration in her system.

          Although the zero-tolerance statute (625 ILCS 5/11-

501.8 (West 2002)) is not at issue in this case, we look at it

and the penalties for violating it for guidance.    We do this

because the zero-tolerance statute punishes drivers plaintiff's

age who drink alcohol and drive.
          A minor who drinks and drives is more dangerous to

himself or herself, and the public, than someone such as plain-

tiff who was not drinking and driving.    Yet the Secretary pun-

ished plaintiff four times more severely than the General Assem-

bly saw fit to set the minimum punishment for a zero-tolerance

offender who was drinking and driving but agreed to testing.

                "The zero-tolerance statute, which came

          into effect on January 1, 1995, is set forth

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in section 11-501.8 of the Vehicle Code (625

ILCS 5/11-501.8 (West 1998)).     The statute

provides in subsection (a) that, if a person

under the age of 21, while operating a motor

vehicle on the public roads of this state, is

arrested for any traffic violation and the

arresting officer 'has probable cause to

believe that the driver has consumed any

amount of an alcoholic beverage,' the driver

'shall be deemed to have given consent to a

chemical test or tests of blood, breath, or

urine for the purpose of determining the

alcohol content of the person's blood.'    625

ILCS 5/11-501.8(a) (West 1998).    When the

conditions in subsection (a) are met and the

driver is asked to submit to testing, the

driver must be warned that his driving privi-

leges may be suspended if he refuses to sub-

mit to the testing or if he submits to the

test and the test reveals an alcohol concen-

tration greater that 0.00.   625 ILCS 5/11-

501.8(c) (West 1998).   After being warned, if

the driver refuses to submit to testing or if

he submits to testing and the testing estab-

lishes an alcohol concentration greater than

0.00, the officer 'shall immediately submit a


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           sworn report to the Secretary of State' cer-

           tifying whether the driver submitted to test-

           ing or refused.   625 ILCS 5/11-501.8(d) (West

           1998)."   (Emphasis in original.)   Gumma v.

           White, 216 Ill. 2d 23, 33, 833 N.E.2d 834,

           840-41 (2005).

           Section 6-208.2 of the Vehicle Code sets forth the

provisions for restoration of driving privileges of persons under

21.   625 ILCS 5/6-208.2 (West 2002).   Unless a minor's suspension

based upon consumption of alcohol by a minor or refusal to submit

to testing has been rescinded by the Secretary in accordance with

subsection (c)(3) of section 6-206 of the Vehicle Code (625 ILCS

5/6-206(c)(3) (West 2002)), a person whose privilege to drive has

been suspended under section 11-501.8 is not eligible for resto-

ration of the privilege until six months from the date of the

suspension for refusal or failure to complete a test to determine

alcohol concentration under section 11-501.8, or three months

from the date of a suspension imposed following the minor's

submission to a chemical test which disclosed an alcohol concen-

tration greater than 0.00 under section 11-501.8.     625 ILCS 5/6-

208.2(a)(1), (a)(2) (West 2002).

           Further, in looking at this state's consent statute

(625 ILCS 5/11-501.1 (West 2002)), our supreme court has stated

the following:

                 "The implied-consent statute serves the

           legislative purpose of promoting highway


                                - 8 -
          safety by assisting in the determination of

          whether drivers suspected of intoxication are

          in fact under the influence of alcohol.

          [Citation.]   The threat of summary suspension

          for refusing to take a blood-alcohol test

          motivates drivers to take the test, thereby

          allowing the State to obtain objective evi-

          dence of intoxication."      People v. Wegielnik,

          152 Ill. 2d 418, 425, 605 N.E.2d 487, 490

          (1992).

Thus, the implied-consent statute gives drivers motivation to

cooperate with police and submit to chemical testing so that they

avoid summary suspension.   This reasoning applies equally under

the implied-consent provision of the zero-tolerance statute (625

ILCS 5/11-501.8(a) (West 2002)).

          As stated, we recognize plaintiff's license was not

suspended under the zero-tolerance statute.     Rather, plaintiff's

license was suspended under section 6-206(a)(38) of the Vehicle

Code, which gives the Secretary discretionary authority to

suspend a person's driving privileges if she is convicted of a

violation of section 6-20 of the Liquor Control Act or a similar

provision of a local ordinance.    625 ILCS 5/6-206(a)(38) (West

2002).

          If plaintiff had been driving and submitted to testing

which disclosed a 0.005 alcohol concentration, she would be

eligible for restoration of her driving privileges after three


                               - 9 -
months (625 ILCS 5/6-208.2(a)(2) (West 2002)); and if she was

driving and refused to submit to testing, thus conducting herself

in a manner disfavored by law, she would be eligible for restora-

tion of her driving privileges after only six months (625 ILCS

5/6-208.2(a)(1) (West 2002)).    In fact, the penalty the Secretary

imposed on plaintiff is equal to the penalty she would have

received under the zero-tolerance statute had she been a driver

who had been previously suspended under section 11-501.8 of the

Vehicle Code and submitted to a test that disclosed an alcohol
concentration greater than 0.00.    See 625 ILCS 5/6-208.2(a)(4)

(West 2002).

          The Secretary has clearly abused the discretion given

to him by section 6-206 of the Vehicle Code.      The Secretary's

exercise of his discretion should have been guided by the punish-

ments set forth by the legislature that we described above for

minor drivers who drink and drive.       We discern no rational reason
for the Secretary's decision to more severely punish a nondriver

who had a BAC of 0.005 than a driver with an equal BAC.

          Plaintiff also challenges the constitutionality of the

Secretary's action.   It is not clear to us under what theory

plaintiff challenges the constitutionality of the Secretary's

action; her arguments could be interpreted as (1) a

proportionate-penalties argument, (2) an equal-protection argu-

ment, or (3) that section 6-206(a)(38) is unconstitutional as

applied to her because her license was suspended for 12 months

while the statutory penalty for somebody the same age as plain-


                                - 10 -
tiff who was driving an automobile and submitted to a

Breathalyzer test that revealed a BAC over 0.00 is only 3 months.

 We need not address plaintiff's constitutional argument in light

of our conclusion the Secretary abused his discretion in not

modifying plaintiff's suspension.     "[A] reviewing court will not

address constitutional questions if the case may be disposed of

on other grounds."      People v. Wenger, 258 Ill. App. 3d 561, 567,

631 N.E.2d 277, 281 (1994).

                             III. CONCLUSION

            For the reasons stated, we reverse the circuit court's

judgment.

            Reversed.

            APPLETON and COOK, JJ., concur.




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