Bisig v. Mo. Dir. Revenue, WD 80919
| Decision Date | 04 December 2018 |
| Docket Number | WD 80919 |
| Citation | 562 S.W.3d 386 |
| Parties | Donald E. BISIG, Respondent, v. MISSOURI DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Court of Appeals |
Donald E. BISIG, Respondent,
v.
MISSOURI DIRECTOR OF REVENUE, Appellant.
WD 80919
Missouri Court of Appeals, Western District.
OPINION FILED: December 4, 2018
William H. Kariker, St. Joseph, MO, for respondent.
Daniel N. McPherson, Jefferson City, MO, for appellant.
Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge
Gary D. Witt, Judge
The Director of Revenue ("Director") appeals from the trial court's judgment granting Donald Bisig's ("Bisig") petition requesting reinstatement of his driver's license. The Director argues that the trial court erred in granting Bisig's petition because the Director had good cause to request Bisig to submit to a driving skills test. We reverse and remand.
Statement of Facts
The hearing below was submitted entirely on written records and no live testimony was presented. On June 9, 2016, Bisig's primary care physician, Dr. Bryan Green ("Dr. Green"), sent the Department of Revenue ("Department") Form 43191 - the Department's "Driver Condition Report" - pertaining to Bisig. On the Form 4319, Dr. Green reported that Bisig had suffered a stroke and that he had left arm weakness. Form 4319 instructs a person to complete the form if he or she has personal knowledge about a driver he or she believes is no longer able to safely operate a motor vehicle. On the second page, Form 4319 requests that "[p]hysicians, please complete Form 1528 and attach to this report." Form 1528 has significantly more detail regarding medical conditions that may affect a person's ability to safely drive and requires the driver to complete significant portions of the Form 1528. Dr. Green did not submit Form 1528 at the time he submitted Form 4319.
On June 14, 2016, after receiving the Form 4319 from Dr. Green, the Department sent Bisig a "Request for Testing" letter, requiring Bisig to complete and pass a vision examination and a driving skills examination by July 15, 2016, or his driving privilege would be revoked for one year. The letter stated that the Department had received information that Bisig's driving abilities needed to be re-evaluated to ensure he had the skills required to safely operate a motor vehicle. The letter had two types of tests that he needed to complete: a "Vision Examination," and a "Driving Skills Examination" to be completed by a Missouri State Highway Patrol Examiner based on the type of driver's license classification that Bisig held.
On June 17, 2016, Bisig's optometrist filled out and signed Form 999, Vision Examination Record. The optometrist indicated on the Form that Bisig had "20/40 or better in either eye or both eyes when wearing corrective lenses."
On June 29, 2016, Bisig took and failed a driving skills examination. The report of the June 29th exam stated in part that:
Mr. Bisig was in an improper position to make a left turn, while turning out of the parking lot. He failed to look over his left shoulder, to check traffic when
changing lanes on a one-way street. When approaching a stop sign, I stopped Mr. Bisig from rear-ending a car. His test was discontinued due to a hazardous moving violation.
On July 7, 2016, Bisig failed a second driving skills examination. The report of the July 7th exam stated in part that:
Mr. Bisig failed to look over his right shoulder during the backing exercise. While performing the parallel parking exercise, Mr. Bisig had three or more pull-ups, failed to use his turn signal, and did not look over his left shoulder to check traffic when pulling out. Mr. Bisig failed to stop behind the white line at a traffic light. Mr. Bisig came to a complete stop at a nonstop intersection. While making a left turn, one of the vehicle's wheels were out of his lane, resulting in a short turn. His test was discontinued due to excessive points.
On July 14, 2016, Bisig failed a third driving skills examination. The report of the July 14th exam stated in part that:
Mr. Bisig made a left turn from the right lane, on a one-way street, with traffic involved. His test was discontinued due to a hazardous moving violation.
On August 1, 2016, the Department sent Bisig a letter revoking his driving privilege, stating that on August 31, 2016, his "privilege to drive a motor vehicle in Missouri will be revoked for one year for failure to pass the vision and road test."
On August 10, 2016, Bisig submitted Form 1528 - Physician's Statement - to the Department. On the Form 1528, Dr. Green checked boxes that indicated that Bisig had temporary left arm and leg weakness. Dr. Green also checked the box for "[l]ikely capable of operating a motor vehicle safely and responsibly." He also indicated, "There are no medical contraindications at this time. No further evaluation appears to be needed."
On August 17, 2016, Bisig submitted Form 4595 - Application for Limited Driving Privilege - to the Department. Bisig included his Form 999, Vision Examination Record and proof of insurance. On August 23, 2016, the Department sent Bisig a letter denying his application for limited driving privilege because he had "been cited to complete a vision or physical examination or to demonstrate [his] ability to safely operate a motor vehicle pursuant to Section 302.173, RSMo."
On August 26, 2016, Bisig filed a Petition to Review Revocation of Driver's License and/or, in the alternative, Review the Denial of Limited Driving Privileges in the Buchanan County Circuit Court ("Petition"). A stay order was granted by the court, staying the revocation of Bisig's driving privileges on August 31, 2016. The Director filed an answer. A hearing on the Petition was held on May 1, 2017. The case was submitted on the written records and the evidence set forth above was adduced from those records. Neither party challenges the content of those records but only the conclusions the trial court reached based on those records.
At the hearing, Bisig did not argue that the Department failed to establish grounds to revoke his license based on his failure to pass the driving skills test but limited his argument that the Director did not have good cause to require him to take a vision and driving skills examination. Bisig submitted a trial brief and a supplemental brief. On June 7, 2017, the trial court issued its...
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