                             NO. 4-06-0673            Filed 4/9/07

                       IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

DAROLD A. MILLER, JR.,                 )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Sangamon County
JESSE WHITE, Secretary of State,       )    No. 05MR472
State of Illinois,                     )
          Defendant-Appellant.         )    Honorable
                                       )    Leslie J. Graves,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE MYERSCOUGH delivered the opinion of the court:

          Plaintiff, Darold A. Miller, Jr., pleaded guilty to

driving while impaired in Indiana, an offense substantially

similar to driving under the influence (DUI) in Illinois.      The

authorities in Indiana reported plaintiff's conviction to defen-

dant, Jesse White, in his capacity as Illinois' Secretary of

State (Secretary) as required by the Driver's License Compact

(Compact).   The Secretary then revoked plaintiff's Illinois

driver's license and driving privileges.      Plaintiff asked the

Secretary to rescind the order of revocation, and after a hear-

ing, the Secretary refused.    Plaintiff sought administrative

review of the Secretary's decision.    The circuit court reversed

the Secretary's decision and ordered the Secretary to rescind the

order of revocation.   The Secretary appeals, and we reverse the

circuit court's judgment.

                             I. BACKGROUND
          On January 9, 2005, plaintiff, a resident of Sheldon,

Illinois, was arrested in Newton County, Indiana, for operating a

motor vehicle while intoxicated.    One month later, plaintiff

pleaded guilty to the Class C misdemeanor and the parties agreed

he would be sentenced to 60 days in jail, all of which was

suspended except for the one day he already served; pay $1,100 in

fines and costs; and have his driver's license suspended for one

year for his refusal to take a chemical breath test, an addi-

tional 30 days' suspension thereafter, and then restricted for

another 180 days wherein plaintiff would be allowed to drive in

Indiana for employment purposes and in cases of medical emer-

gency.

          The Indiana court directed its clerk to transmit to the

Secretary that plaintiff's plea "and accompanying sentence be

treated as a [s]upervision [o]rder pursuant to 730 ILCS 5/5-6-

1(c) in the State of Illinois."    The Indiana court further

ordered "that the Illinois Secretary of State is to rescind any

summary suspension in regards to [plaintiff]."    (Emphasis in

original.)

          On May 8, 2005, the Secretary revoked plaintiff's

driving privileges pursuant to section 6-206(a)(6) of the Illi-

nois Vehicle Code (Vehicle Code) (625 ILCS 5/6-206(a)(6) (West

2004)), because the offense of which plaintiff was convicted

would have been grounds for suspension or revocation had it been


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committed in Illinois.

            Plaintiff sought rescission of the Secretary's order of

revocation and a hearing was held on July 12, 2005.   After

hearing evidence, the hearing officer issued his findings of

fact, conclusions of law, and a recommendation that plaintiff's

petition be denied.   The hearing officer concluded plaintiff

failed to submit sufficient evidence to warrant rescission of the

order of revocation as (1) he did not present evidence that (a)

the Indiana court had jurisdiction over the Secretary or (b) the

Indiana court had jurisdiction to "provide through Illinois law a

sentence (supervision), which is not provided for in the laws of

the State where the offense and conviction occurred"; (2) the

Secretary was not a party to the proceeding involving the charge

against plaintiff in Indiana; and (3) plaintiff was convicted of

operating a vehicle while intoxicated, an offense, which if

committed in Illinois, would be grounds for revocation of his

driver's license and privileges.   On July 26, 2005, the Secretary

adopted the hearing officer's recommendation and denied the

petition.

            On August 31, 2005, plaintiff filed his complaint for

administrative review in the circuit court.   The parties submit-

ted briefs in support of their positions.   Plaintiff's brief

framed the issue as "whether the Secretary erred, and violated

[section 6-703 of the Vehicle Code] when it revoked the Plain-


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tiff's driver's license."

           On July 10, 2006, the circuit court entered an order

reversing the Secretary's decision and directing the Secretary to

rescind the order of revocation with regard to plaintiff's

driver's license.   The court found the Secretary's refusal "to

rescind the [p]laintiff's revocation of his [d]river's [l]icense

violates the provisions of [section 6-703] in that [the Secre-

tary] has failed to give the same effect to conduct occurring out

[of] [s]tate as it would if such conduct had occurred" in Illi-

nois.   Moreover, the court stated that plaintiff's "sentence is

entitled to being treated as supervision under the provision of

[section 5-6-1(c) of the Unified Code of Corrections (Unified

Code) (730 ILCS 5/5-6-1(c) (West 2004))] in that the Indiana

[c]ourt specifically found that [p]laintiff should be granted

court supervision."   Finally, the court concluded the Secretary

treated plaintiff "more harshly or more severely" because his

offense occurred in Indiana "than the conduct or behavior would

have been treated had the offense occurred in the state of

Illinois."

           This appeal followed.

                            II. ANALYSIS

           In the case at bar, the parties do not dispute that

plaintiff was convicted of driving while impaired in Indiana and

that offense is substantially similar to the offense of DUI in


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Illinois.    On administrative review, plaintiff argued, and the

circuit court accepted the arguments, that the Secretary violated

section 6-703 of the Vehicle Code and that the Indiana sentence

is entitled to being treated as court supervision under section

5-6-1(c) of the Unified Code (730 ILCS 5/5-6-1(c) (West 2004)).

Further, the court opined the Secretary treated plaintiff's

conduct more harshly because it occurred in Indiana rather than

in Illinois.

            On appeal, the Secretary argues (1) the Compact only

requires him to treat plaintiff's out-of-state conviction for DUI

the same as he would treat that conviction had the conduct

occurred in Illinois, (2) he is authorized to revoke a person's

driving privileges if that person is convicted of driving under

the influence of alcohol in another state, and (3) section 5-6-

1(c) of the Unified Code merely provides that entry of an order

of supervision is a matter of discretion.

                        A. Standard of Review

            The Secretary's final administrative decisions are

subject to judicial review pursuant to the Administrative Review

Law (735 ILCS 5/3-101 through 113 (West 2004)), and a reviewing

court may not overturn an administrative agency's decision unless

the administrative agency exercised its authority in an arbitrary

and capricious manner or its decision is against the manifest

weight of the evidence (Bruce v. White, 344 Ill. App. 3d 795,


                                - 5 -
798-99, 801 N.E.2d 581, 584 (2003)).     The Secretary's findings

and conclusions on questions of fact are prima facie true and

correct and if anything in the record fairly supports the

agency's decision, that decision is not against the manifest

weight of the evidence.     Bruce, 344 Ill. App. 3d at 799, 801

N.E.2d at 584.   "An agency's conclusion on a question of law is

reviewed de novo."     Comprehensive Community Solutions, Inc. v.

Rockford School District No. 205, 216 Ill. 2d 455, 471, 837

N.E.2d 1, 10 (2005).    Additionally, we review the Secretary's

decision and not the circuit court's decision.     Mefford v. White,

331 Ill. App. 3d 167, 173, 770 N.E.2d 1251, 1256 (2002).

                     B. Driver's License Compact

           Illinois is a member of the Compact.    See 625 ILCS 5/6-

700 through 6-708 (West 2004).    Indiana is also a member of the

Compact.   See Ind. Code Ann. §9-28-1-3 (Lexis Nexus 2004).

           The parties to the Compact recognized that (1) the

safety of their streets is materially affected by the degree of

compliance with local ordinances and state laws that relate to

operating motor vehicles, (2) the violation of such ordinances or

laws is evidence that the violator engages in conduct that is

likely to threaten the safety of persons and property, and (3)

the continuation of a license to drive is predicated upon a

driver's compliance with the ordinances and laws relating to the

operation of motor vehicles in whichever jurisdiction the vehicle


                                 - 6 -
is operated.   625 ILCS 5/6-701 (West 2004).   In furtherance of

these policies, the Compact states the following:

                "The licensing authority of a party

          state shall report each conviction of a per-

          son from another party state occurring within

          its jurisdiction to the licensing authority

          of the home state of the licensee.    Such

          report shall clearly identify the person

          convicted; describe the violation specifying

          the section of the statute, code[,] or ordi-

          nance violated; identify the court in which

          action was taken; indicate whether a plea of

          guilty or not guilty was entered, or the

          conviction was a result of the forfeiture of

          bail, bond or other security; and shall in-

          clude any special findings made in connection

          therewith."   625 ILCS 5/6-702 (West 2004).

The Compact further provides that in cases of convictions for

driving under the influence of alcohol, among other offenses, the

licensing authority for the home state for purposes of suspend-

ing, revoking, or limiting the license to operate a motor vehicle

"shall give the same effect to the conduct reported, pursuant to

[s]ection 6-702 [(625 ILCS 5/6-702 (West 2004))], as it would if

such conduct had occurred in the home state."    625 ILCS 5/6-703


                               - 7 -
(West 2004).   In this case, Illinois is the home state.   See 625

ILCS 5/6-700 (West 2002) ("'Home state' means the state which has

issued and has the power to suspend or revoke the use of the

license or permit to operate a motor vehicle").   The plain

language of section 6-703 requires only that, for purposes of

suspending, revoking, or limiting plaintiff's driver's license or

driving privileges, the Secretary treat plaintiff's conduct the

same as if plaintiff's conduct had occurred in Illinois.   Thus,

we must determine whether the Secretary would have possessed the

authority to revoke plaintiff's driver's license had the conduct

occurred in Illinois.

      C. Did the Secretary Possess the Authority To Revoke
                  Plaintiff's Driver's License?

          Under section 6-206(a)(6) of the Vehicle Code, the

Secretary has the discretionary authority to suspend or revoke

the driving privileges of any person, without preliminary hear-

ing, upon a showing that person has been convicted of any of-

fense, which if committed in Illinois, would be grounds for

suspension or revocation.   625 ILCS 5/6-206(a)(6) (West 2004).

Section 6-205(a)(2) of the Vehicle Code states the Secretary of

State shall immediately revoke the driver's license or driving

privileges of any driver upon receiving a report of the driver's

conviction for violating section 11-501 of the Vehicle Code (625

ILCS 5/11-501 (West 2004)) or a similar provision of a local

ordinance relating to the offense of operating or being in

                               - 8 -
physical control of a vehicle while under the influence of

alcohol.    Section 11-501(a)(2) of the Vehicle Code prohibits

driving under the influence of alcohol.    625 ILCS 5/11-501(a)(2)

(West 2004).

            As stated, neither party disputes that the offense

plaintiff pleaded guilty to in Indiana, i.e., driving while

impaired, is "substantially similar" to the offense of DUI in

Illinois.    Because the Secretary has the authority to revoke a

driver's license upon conviction of DUI in Illinois, the Secre-

tary possessed the authority to revoke plaintiff's driver's

license upon learning of his Indiana conviction for a substan-

tially similar offense.

 D. Plaintiff's Argument That the Secretary Erred in Refusing To
         Treat His Indiana Sentence as Court Supervision

            Plaintiff argues the Secretary erred by refusing to

treat the Indiana sentence as court supervision.    Plaintiff's

argument is twofold.    First, plaintiff contends the Secretary

erred by ignoring the Indiana court's "special finding" that the

Secretary should treat plaintiff's sentence as one of court

supervision under section 5-6-1 of the Unified Code.    Second,

plaintiff maintains case law supports his position.    The Secre-

tary contends the argument that he was required to treat plain-

tiff's sentence in Indiana as one of court supervision is without

basis.   We agree with the Secretary.

            Section 5-6-1(c) of the Unified Code provides that

                                - 9 -
subject to certain conditions and exceptions, a court may, upon a

finding of guilt, defer further proceedings and the imposition of

a sentence and order supervision.    730 ILCS 5/5-6-1(c) (West

2004).    The court may enter an order of supervision if, after

considering the circumstances of the offense, and the history,

character, and condition of the offender, the court opines that

(1) the offender is unlikely to commit further crimes, (2) the

defendant and public would be best served if defendant did not

receive a criminal record, and (3) in the best interests of

justice a supervision order is more appropriate than a sentence

otherwise permitted under the Unified Code.    730 ILCS 5/5-6-

1(c)(1), (c)(2), (c)(3) (West 2004).

            Plaintiff contends the Secretary chose to ignore the

Indiana court's "special finding" that the Secretary shall treat

that court's sentence as a supervision order under section 5-6-

1(c) of the Unified Code.    However, plaintiff has not cited, nor

has our research revealed, authority for the proposition that a

court sitting in another state has the authority to order the

Secretary how to treat citizens of this state who have been

convicted of DUI or a "substantially similar" offense in other

states.    Finally, the parties do not cite nor has our research

led us to any provision in Indiana's statutes that indicates an

Indiana court can grant court supervision to a person convicted

of driving while impaired.    It defies logic to give a court


                               - 10 -
sitting in another jurisdiction the authority to require the

Secretary to treat a sentence as court supervision when the

sentencing court could not impose such a sentence in the state in

which it sits.

            Plaintiff also contends two Illinois cases support his

proposition that the Secretary should have treated his Indiana

sentence as one of supervision.    We disagree with plaintiff's

interpretation of these cases and conclude they in fact support

the Secretary's position.

            In Schultz v. Edgar, 170 Ill. App. 3d 36, 37, 523

N.E.2d 1289, 1290 (1988), the plaintiff was arrested in Wisconsin

for DUI.    Plaintiff pleaded guilty to the offense and his

driver's license was suspended for three months in Wisconsin.

Schultz, 170 Ill. App. 3d at 37, 523 N.E.2d at 1290.    Pursuant to

section 6-702 of the Vehicle Code, Wisconsin notified the Secre-

tary of plaintiff's conviction and the Secretary subsequently

revoked plaintiff's driver's license and driving privileges in

Illinois.    Schultz, 170 Ill. App. 3d at 37, 523 N.E.2d at 1290.

Plaintiff filed a petition seeking rescission of the order of

revocation and reinstatement of full driving privileges or for

the issuance of a restricted driving permit (RDP).     Schultz, 170

Ill. App. 3d at 38, 523 N.E.2d at 1290.    The Secretary denied

plaintiff's petition.    Schultz, 170 Ill. App. 3d at 38, 523

N.E.2d at 1290.    The circuit court reversed the Secretary's


                               - 11 -
decision because the Secretary "'did not have the authority to

add punishment on punishment' when he revoked plaintiff's license

based on a Wisconsin DUI conviction when a Wisconsin court only

suspended plaintiff's driving privileges for three months."

Schultz, 170 Ill. App. 3d at 38, 523 N.E.2d at 1290-91.

           The First District reversed the circuit court's deci-

sion.   The court noted the Secretary has discretionary authority

to revoke the Illinois driver's license of a person convicted of

DUI in another jurisdiction pursuant to sections 6-205(a)(2), 6-

206(a)(6), and 6-703(a)(2) of the Vehicle Code.   Schultz, 170

Ill. App. 3d at 38-39, 523 N.E.2d at 1291.   The court stated

"[t]he Illinois legislature has entrusted [the Secretary] with

exclusive authority to regulate the issuance or denial of Illi-

nois driver's licenses, and it would be contrary to public policy

in Illinois to require [the Secretary] to apply a more lenient

Wisconsin statute to plaintiff's offense."   Schultz, 170 Ill.

App. 3d at 39, 523 N.E.2d at 1291.

           The court also rejected plaintiff's argument that

revocation of his driver's license was improper because he was a

first-time DUI offender and may have received court supervision

rather than a conviction had he been prosecuted in Illinois.

Schultz, 170 Ill. App. 3d at 39, 523 N.E.2d at 1291.   The court

stated "this argument provides no basis to overturn the revoca-

tion of plaintiff's driver's license where he committed a DUI


                              - 12 -
offense while on a Wisconsin highway and was therefore subject to

the laws of that jurisdiction."     Schultz, 170 Ill. App. 3d at 39,

523 N.E.2d at 1291.    Further, the court noted that every first-

time DUI offender in Illinois does not necessarily receive court

supervision as that is a determination solely within the discre-

tion of the trial court.     Schultz, 170 Ill. App. 3d at 39, 523

N.E.2d at 1291.

            In Mills v. Edgar, 178 Ill. App. 3d 1054, 1055, 534

N.E.2d 187, 188 (1989), the plaintiff pleaded guilty to driving

while impaired in Colorado.    After learning of this conviction,

the Secretary entered an order revoking plaintiff's Illinois

driver's license pursuant to section 6-205(d) of the Vehicle

Code.   Mills, 178 Ill. App. 3d at 1055, 534 N.E.2d at 188.

Plaintiff petitioned the Secretary to rescind that order, but the

Secretary denied the request.     Mills, 178 Ill. App. 3d at 1055,

534 N.E.2d at 188.    The circuit court reversed the Secretary's

decision after finding it was contrary to law and ordered the

Secretary to rescind the revocation of the plaintiff's driver's

license.    Mills, 178 Ill. App. 3d at 1055, 534 N.E.2d at 188.

            The Fourth District found the offense of driving while

impaired in Colorado is "'substantially similar'" within the

meaning of section 6-703(c) of the Vehicle Code to the offense of

DUI in Illinois.     Mills, 178 Ill. App. 3d at 1058, 534 N.E.2d at

190.    Plaintiff maintained that he likely would have been placed


                                - 13 -
on supervision, no conviction would have been obtained, and he

would not have lost his driving privileges had he been charged

with DUI in Illinois and his impairment was no worse than that

which would have merely constituted driving while impaired under

Colorado law.   Mills, 178 Ill. App. 3d at 1058, 534 N.E.2d at

190.   The court found that supposition to be too speculative.

Mills, 178 Ill. App. 3d at 1058, 534 N.E.2d at 190.    Further, the

court stated section 6-703 of the Vehicle Code "indicates the

'conduct' giving rise to the offenses in the various States is

the element to compare and not the penalties."   Mills, 178 Ill.

App. 3d at 1058, 534 N.E.2d at 190.

           As stated, plaintiff argues the Secretary should have

treated the Indiana court's sentence as an order of supervision.

Plaintiff also contends that since this is his first DUI offense,

it is likely he would have been given court supervision if the

conduct giving rise to the offense had occurred in Illinois

rather than Indiana.

           First, as in Mills, it is too speculative to say an

Illinois court would likely have given plaintiff court supervi-

sion had the conduct occurred in Illinois rather than Indiana.

Mills, 178 Ill. App. 3d at 1058, 534 N.E.2d at 190.    Further, as

the Schultz court noted, every first-time DUI offender in Illi-

nois does not necessarily receive court supervision.   That is a

determination that lies solely within the discretion of the trial


                              - 14 -
court.   Schultz, 170 Ill. App. 3d at 39, 523 N.E.2d at 1291.       In

this case, the trial court was an Indiana court, and as stated,

that court does not have the authority to require the Secretary

to treat plaintiff's sentence as one of court supervision.     Our

legislature has entrusted the authority to regulate the issuance

and/or denial of Illinois driver's licenses solely to the Secre-

tary.    An Indiana court does not possess the authority to order

the Secretary how to utilize the authority our legislature has

vested in him.

            Clearly, the Indiana trial court intended plaintiff not

be suspended or revoked in Illinois.     However, curiously, that

court actually suspended plaintiff's driver's license in Indiana

for 13 months followed by an RDP for 180 days.     We question why

the court would suspend plaintiff's driving privileges in Indiana

and yet order Illinois Secretary of State to allow plaintiff to

drive in Illinois.    We also question how the court could issue an

Indiana restricted permit to an Illinois driver.

            Finally, we concede the penalty for DUI in Indiana may

differ from that in Illinois.    Indiana apparently does not

recognize supervision as a disposition for DUI while Illinois

does.    However, the Compact adopted by our legislature does not

accommodate this distinction between states, and, therefore, the

legislature may need to reconsider this conflict between states'

sentencing statutes.


                                - 15 -
                            III. CONCLUSION

          For the reasons stated, we conclude the Secretary's

decision to revoke plaintiff's driver's license was not arbi-

trary, capricious, or against the manifest weight of the evi-

dence, and we reverse the circuit court's judgment and reinstate

the Secretary's decision.

          Reversed; Secretary's decision reinstated.

          STEIGMANN, P.J., and COOK, J., concur.




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