Allen v. Director of Revenue

• Decision Date: 13 November 2001
• Docket Number: WD59379
• Citation: 59 S.W.3d 636
• Parties: Jerry D. Allen, Respondent, v. Director of Revenue, Appellant. WD59379 Missouri Court of Appeals Western District
• Court: Missouri Court of Appeals

Jerry D. Allen, Respondent v Director of Revenue, Appellant

WD59379

Missouri Court of Appeals Western District

11/13/2001

Appeal From: Circuit Court of Mercer County, Hon. Andrew A. Krohn

Counsel for Appellant: Linda K. Manlove

Counsel for Respondent: Allan D. Seidel

Opinion Summary:

The director of the department of revenue appeals the court's judgment reinstating Jerry D. Allen's driving privileges. The director revoked Allen's driving license pursuant to section 577.041, RSMo 2000, because Allen refused to submit to a breath test after being arrested for driving while intoxicated.

Division holds: Section 577.041.2 specifically requires that the arresting officer "make a sworn report to the director of revenue[.]" The director's receiving this sworn report is what activates the director's authority to revoke a driving license, and the director has no power to act before then. In this case, the officer did not make a sworn report to the director. By revoking Allen's license without a sworn report from the officer, the director exceeded the powers expressly conferred on the director by section 577.041, RSMo 2000.

Smart, Jr., and White Hardwick, JJ., concur.

Paul M. Spinden, Chief Judge

Department of Revenue's director appeals the circuit court's judgment reinstating Jerry D. Allen's driving privileges. The director revoked Allen's driving license pursuant to section 577.041¹ because Allen refused to submit to a breath test after being arrested for driving while intoxicated. Because the director acted beyond the scope of his authority as set by section 577.041, we affirm the circuit court's judgment setting aside the director's revocation of Allen's driving license.

The evidence established that the arresting officer submitted an unsigned and unsworn alcohol influence report to the director asserting that he had reasonable grounds to believe that Allen was driving a motor vehicle while in an intoxicated condition and that Allen refused to submit to a breath test.² Based on the officer's unsworn report, the director of revenue revoked Allen's driving privileges. Allen filed a petition for review in circuit court. Judicial review of these matters is de novo.

At trial, the director's only evidence was the director's records, which consisted of the officer's unsworn alcohol influence report.³ The circuit court ruled that the director's evidence did not establish that the officer had reasonable grounds to believe that Allen was driving the vehicle while in an intoxicated condition, so it set aside the director's revocation and reinstated Allen's driving license.

The General Assembly mandated in section 577.041.2 that, in cases involving a driver's refusal to submit to a chemical test, an arresting officer must "make a sworn report to the director of revenue," stating among other things that the officer has "[r]easonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated or drugged condition" and "[t]hat the person refused to submit to a chemical test[.]" Section 577.041.3 says, "Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year[.]"

As an administrative agency, the Department of Revenue has only those powers expressly conferred or necessarily implied by Missouri's constitution or by statute. Bodenhausen v. Missouri Board of Registration for the Healing Arts, 900 S.W.2d 621, 622 (Mo. banc 1995). Because administrative law is a matter solely of constitutional or statutory creation, the courts must follow the procedures provided by these laws. Sterneker v. Director of Revenue, 3 S.W.3d 808, 810-11 (Mo. App. 1999) (quoting Wates v. Carnes, 521 S.W.2d 389, 390 (Mo. 1975),⁴ and Spitcaufsky v. Hatten, 182 S.W.2d 86, 95 (Mo. banc 1944)⁵). See also Jennings v. Director of Revenue, 992 S.W.2d 249, 252 (Mo. App. 1999).

Section 577.041.2 specifically requires that the arresting officer "make a sworn report to the director of revenue[.]" The director's receiving this sworn report is what activates the director's authority to revoke a driving license. He has no power to act before then. By requiring a sworn report, the General Assembly affords some measure of reliability and protection to a licensee, and the director's ignoring this mandate thwarts this protection. The sworn report, therefore, is essential to the validity of the director's subsequent actions. If the director does not receive a sworn report, his subsequent actions are void.

Some courts have held that proof that a sworn report was made and sent to the director of revenue is not essential for the circuit court's determination of the issues set forth in section 577.041.4. Rains v. King, 695 S.W.2d 523, 525 (Mo. App. 1985); Turpin v. King, 693 S.W.2d 895, 896 (Mo. App. 1985); and Stenzel v. Department of Revenue, 536 S.W.2d 163, 169 (Mo. App. 1976). Indeed, section 577.041.4 says that, if persons whose licenses have been revoked because of their refusal to submit to a chemical test petition the circuit court for a hearing, the circuit court "shall determine only:⁶ (1) [w]hether or not the person was arrested or stopped; (2) [w]hether or not the officer had: (a) reasonable grounds to believe that the person was driving a vehicle while in an intoxicated condition; . . . and (3) [w]hether or not the person refused to submit to the test."

None of these cases, however, focused on the director's authority to act without a sworn statement. In Stenzel, the arresting officer signed and swore to a report and submitted it to the director, but the sworn report was not introduced into evidence. 536 S.W.2d at 169. In Turpin, the court did not report whether the arresting officer submitted a sworn report to the director. It focused entirely on the proceedings before the circuit court. The Turpin court concluded, "There was no necessity for evidence of such a report. Proof that the report was made is not essential for the trial judge to determine the matters stated in section 577.041[.]" 693 S.W.2d at 896.

Finally, in Rains, the appellant contended that no affidavit describing her refusal was ever submitted to the director and that the evidence did not establish that the report sent to the director was sworn to by the officer. 695 S.W.2d at 525. The court concluded that the appellant's contention was directly contrary to the appellant's petition. Id. The court noted that the appellant stated in her petition that the "'officer did submit an affidavit to the Department of Revenue alleging that Plaintiff had refused to take and submit to a chemical test for her breath[.]'" Id. Relying on Stenzel and Turpin, the Rains court added, "Proof that the 'sworn report' was sent to the...