Carr v. Director of Revenue

• Decision Date: 10 December 2002
• Docket Number: No. WD 60617.,WD 60617.
• Citation: 95 S.W.3d 121
• Parties: Derrick O. CARR, Respondent, v. DIRECTOR OF REVENUE, DRIVERS LICENSE BUREAU, Appellant.
• Court: Missouri Court of Appeals

Page 121

95 S.W.3d 121

Derrick O. CARR, Respondent, v. DIRECTOR OF REVENUE, DRIVERS LICENSE BUREAU, Appellant.

No. WD 60617.

Missouri Court of Appeals, Western District.

December 10, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 28, 2003.

James A. Chenault, II, Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, MO, for appellant.

Bob J. Hiler, Kansas City, MO, for respondent.

Before PAUL M. SPINDEN, P.J., PATRICIA A. BRECKENRIDGE and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

The Director of Revenue raises a challenge to the ruling of the trial court, which reinstated Derrick 0. Carr's driving privileges. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Carr was arrested at 1:50 a.m. on April 21, 2000, for driving while intoxicated (DWI). After a field sobriety test, the arresting officer conducted a breath analyzer test, and the results showed a blood alcohol content of 0.106%. Mr. Carr was issued a suspension notice of his driver's license.

Mr. Carr filed a petition challenging this suspension in Jackson County Circuit Court on August 9, 2000. The trial court ruled that it did not have subject matter jurisdiction and dismissed the petition. We reversed the ruling of the trial court, remanding the case to be heard on its merits. See Carr v. Dir. of Revenue, 49 S.W.3d 248, 249 (Mo.App. W.D.2001).

On September 20, 2001, a hearing was held on Mr. Carr's petition. At the hearing, the Director called the arresting officer, Greg Harmon. Officer Harmon testified about the circumstances of the arrest and the administration of the breathalyzer test. During the fifteen minutes preceding the test, Officer Harmon stated that he observed Mr. Carr and that Mr. Carr did not go to the bathroom, eat, drink, smoke, vomit, or place anything in his mouth.

Mr. Carr testified at the hearing too. During his testimony, Mr. Carr directly contradicted the testimony of Officer Harmon in regard to the events that occurred before he took the breathalyzer test. Specifically, Mr. Carr stated that prior to taking the test, he was placed in a holding cell where an unknown inmate allowed him to smoke his cigarette. Soon thereafter, he stated that he was taken to a room where he was allowed to go to the restroom. While in the restroom, it was Mr. Carr's testimony that he had "a piece of butterscotch candy." Finally, Mr. Carr stated that all of these activities occurred outside of the presence of Officer Harmon just before his breathalyzer test and that the officer had not observed him for the fifteen minutes immediately preceding his breathalyzer test.

Mr. Carr, on cross-examination, admitted to consuming a beer and a shot of whiskey on the night that he was arrested for the DWI violation. At the close of the evidence, the trial court rendered a judgment in favor of Mr. Carr, reinstating his driving privileges and ordering "that said revocation be held void, and of no force or effect."

The Director brings two points on appeal. In Point I, it is urged that "the court below erred in setting aside the suspension of [Mr. Carr's] driving privileges because the court lacked subject matter jurisdiction, in that [Mr. Carr's] petition failed to state a claim for which relief could be granted." Point II alleges that the trial court erred in setting aside the suspension of Mr. Carr's driver's license because the Director successfully "established a prima facie case under § 302.505 which [Mr. Carr] failed to rebut."

II. STANDARD OF REVIEW

The appropriate standard of review in this case was stated in Cox v. Director of Revenue, 974 S.W.2d 633, 635 (Mo.App. W.D.1998):

We will review the circuit court's judgment, rather than the Director's decision, according to the standard set out for judge-tried cases, Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accordingly, we will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.

Id. (citations omitted).

III. LEGAL ANALYSIS

A. Subject Matter Jurisdiction

In Point I, the Director alleges that the trial court erred in reversing the revocation of Mr. Carr's license "because the court lacked subject matter jurisdiction, in that [Mr. Carr's] petition failed to state a claim for which relief could be granted." The Director argues that the trial court erred in granting relief to Mr. Carr because he cited the wrong statute in his petition, and the trial court issued its judgment under this same incorrect provision of law. There can be no doubt that this statutory mistake occurred. Mr. Carr, in petitioning the court to reinstate his driving privileges, cited to § 577.041,¹ the statute that controls the criminal procedures and punishment when an individual refuses to submit to a "chemical test" (in this case a breathalyzer test). See § 577.041. Of course, this is problematic because of the fact that Mr. Carr agreed to taking the breathalyzer test, and, therefore, his license was not suspended pursuant to this part of the statute. Rather, his license was suspended under § 302.505 for failing the breathalyzer test (he tested at 0.106%). Therefore, the proper means for him to challenge the restriction of his driving privileges was § 302.535. Compounding the problem is the fact that the trial court cited to § 577.041 in its judgment.

On appeal, Mr. Carr concedes that this mistake occurred; however, he urges that it need not warrant reversal of the trial court's judgment. In making this argument, he states that "[w]hile Section 577.041 was mistakenly referenced as the controlling statute section, a reading of said Application as to the allegations for requesting the same does clearly demonstrate that it was being made because of an administrative suspension due to alleged excessive blood alcohol content as per Section 302.535." Unfortunately, Mr. Carr cites no authority to support this reasoning or its ultimate conclusion. In his brief, Mr. Carr merely agrees with the Director that this issue is one of first impression.²

This case does seem to present an issue of first impression. Even though our case is a civil matter, one analogous, reoccurring situation stands out in order to assist this court in resolving this issue: inaccurate and misleading indictments. There is case law that deals with the scenario where a prosecutor has failed to cite the correct statute in the criminal information charging a defendant. "Citing the incorrect statute in the information does not necessarily render the information insufficient." State v. Taylor, 929 S.W.2d 209, 218 (Mo. banc 1996) (citing State v. LaPlant, 673 S.W.2d 782, 785 (Mo. banc 1984)). "The primary purpose of an information is to give defendant sufficient notice of the charge to allow adequate preparation of a defense and avoid retrial on the same charges in case of acquittal." Id. Indeed, this Court has used this proposition of law to uphold criminal convictions of defendants because of various errors committed by the prosecutor or the trial court. See State v. Boyd, 927 S.W.2d 385, 389-90 (Mo.App. W.D.1996) (holding that defendant's sentence as persistent DWI offender was proper notwithstanding the fact that the State failed to cite the effective date the statute became law); State v. Henderson, 750 S.W.2d 507, 512-13 (Mo. App. W.D.1988); see also State v. Cusumano, 819 S.W.2d 59, 61 (Mo.App. E.D. 1991) (upholding defendant's conviction under § 304.010 even though he should have been charged under § 304.009).

A parallel between this doctrine and our seemingly novel issue exists: an error was made in the civil pleadings submitted before the court but not one significant enough that a party to the proceeding was mislead or confused as to what the substance of the argument was or what legal impact that argument would have. In this case, everyone privy to Mr. Carr's petition was aware of the relief he was requesting: to have his suspended license reinstated. This can be seen quite clearly from Mr. Carr's petition and the Director's opposing briefs. Moreover, the substance of the error raised by Mr. Carr was stated in the petition:

[T]he Officer, when he took [Mr. Carr] to the station, allowed him to go to the bathroom, and he smoked a cigarette, and also ate a piece of butterscotch candy, and the Officer also brought toilet paper to [Mr. Carr], and then when the Officer realized that [Mr. Carr] had smoked a cigarette and told him he had eaten butterscotch candy, the Officer told him to get off the stool, and they went immediately and a test was taken, without the 15 minute wait that is required for a person's breath test to be taken, especially since [Mr. Carr] had smoked a cigarette and ate candy, and the results of the breath test should not be received in evidence, and [Mr. Carr's] driver's license should be reinstated, by the Court.

Also, in his petition, Mr. Carr's attorney cited to the statute dealing with suspended licenses as a result of refusing to take a breathalyzer test instead of citing the applicable statute pertaining to the situation where one fails the breathalyzer test. The Director argues that this mistake made by Mr. Carr and the trial court was so egregious as to rob the court of subject matter jurisdiction. In order to support this contention, the Director cites to Adkisson v. Dir. of Revenue, 891 S.W.2d 131, 132-33 (Mo. banc 1995), for the proposition "that a petition seeking relief from a non-existent license action fails to state a claim and therefore fails to vest the court with subject matter jurisdiction." But Adkisson is distinguishable from our case. In Adkisson, petitioner received a letter from the Director that was a "Notice of Loss of Driving Privilege" pursuant §§ 302.304.1 and .6, notifying him of the suspended status of his license because he "had accumulated twelve points within a twelve-month period." Id. at 131-33. It was held, however, "[b]...