Boin v. Dir. of Revenue, WD 77075

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAlok Ahuja, Judge
Citation455 S.W.3d 506
PartiesLarry W. Boin, Respondent, v. Director of Revenue, Appellant.
Decision Date03 March 2015
Docket NumberWD 77075

455 S.W.3d 506

Larry W. Boin, Respondent
v.
Director of Revenue, Appellant.

WD 77075

Missouri Court of Appeals, Western District.

Filed: March 3, 2015


Judy R. Ullmann, Nevada, MO, for Appellant.

Rachel M. Jones, Jefferson City, MO, for Respondent.

Before Division Four: Alok Ahuja, C.J., Cynthia L. Martin, J., and David H. Miller, Sp. J.

Opinion

Alok Ahuja, Judge

In March 2011, Respondent Larry Wayne Boin was stopped and arrested while driving, based on probable cause to believe that he was driving while intoxicated. After being transported to the local jail, Boin refused to submit to a chemical breath test. As a result, Boin's driving privileges were revoked. Boin filed a petition for declaratory judgment more than a year after the March 2011 incident. As amended, his petition asked the circuit court to declare the March 2011 revocation void. The trial court granted the relief requested. The Director appeals. Because we conclude that Boin's petition was untimely, we reverse.

Factual Background

Respondent Larry Wayne Boin was subject to a ten-year denial of driving privileges under § 302.060.1(9),1 which was set to expire on October 31, 2012. As relevant here, § 302.060.1 provides:

The director shall not issue any license and shall immediately deny any driving privilege:
....
(9) To any person who has been convicted more than twice of violating state law, or a county or municipal ordinance ..., relating to driving while intoxicated; except that, after the expiration often years from the date of conviction of the last offense of violating such law or ordinance relating to driving while intoxicated, a person who was so convicted may petition the circuit court [for reinstatement].... If the court finds that the petitioner has not been found guilty of, and has no pending charges for any offense related to alcohol, controlled substances or drugs and has no other alcohol-related enforcement contacts as defined in section 302.525 during the preceding ten years and that the petitioner's habits and conduct show such petitioner to no longer pose a threat to the public safety of this state, the court shall order the director to issue a license to the petitioner if the petitioner is otherwise qualified....

(Emphasis added.) “Alcohol-related enforcement contacts” include “any suspension

455 S.W.3d 508

or revocation entered in this or any other state for a refusal to submit to chemical testing under an implied consent law.” § 302.525.3. The emphasized language of § 302.060.1(9), which prohibits reinstatement within ten years of an “alcohol-related enforcement contact,” was added to the statute in 2012, effective August 28, 2012. See H.B. 1402, 96th Gen. Assembly, 2d Regular Session (2012).

On March 17, 2011, while driving with limited driving privileges, Boin was stopped for speeding, and was asked by the police officer to perform field sobriety tests. A portable breath test was performed, which indicated the presence of alcohol. The police officer arrested Boin and transported him to the Vernon County Jail. Boin was asked to perform another chemical breath test at the jail. According to Boin's amended petition, when asked to perform the test at the jail, Boin responded “you already gave it to me,” by which he intended to inform the officer “that he had already submitted to the same test less than a half-hour earlier.” Boin's response was deemed a refusal, and his driving privileges were revoked. The Director of Revenue takes the position that the March 2011 revocation constitutes an “alcohol-related enforcement contact” under § 302.060.1(9) as amended in 2012, and that Boin is therefore ineligible for reinstatement of his full driving privileges until 2021, ten years after the March 2011 revocation.

On October 23, 2012, more than a year after the March 2011 revocation, Boin filed a Petition for Declaratory Judgment in the Circuit Court of Vernon County. Boin's original petition alleged that he had “refused to give a breath sample” in 2011, which “result[ed] in an administrative chemical action violation on his Missouri driver's history.” Boin's original petition alleged that, as a result of a 2012 amendment to § 302.060.1(9), the 2011 revocation would prevent him from obtaining reinstatement of his driving privileges on October 31, 2012, as he had previously anticipated. Boin's original petition prayed for a declaratory judgment that the 2012 amendment to § 302.060.1(9) “may not be retroactively applied so as to deny [Boin] entitlement to reinstate his driving privileges on October 31, 2012.”

The Director filed an answer to Boin's original petition which argued that amendments to Missouri driver's licensing laws are applied retroactively, and that Boin was accordingly ineligible to apply for reinstatement of his driving privileges until 2021. The answer also alleged, however, that Boin was eligible for extension of his limited driving privileges (which required that an ignition interlock device be maintained in his vehicle).

Boin voluntarily dismissed his petition on March 19, 2013. On April 9, 2013, he requested that his petition be reinstated. The circuit court reinstated Boin's petition, and granted him leave to file an amended petition.

Although Boin's original petition had affirmatively alleged that he had “refused to give a breath sample” in the March 2011 incident, the amended petition alleged that Boin's response to the officer's request for a breath sample at the jail was not an informed, actual refusal. The amended petition prayed that the court “[d]eclar[e] that [Boin] did not knowingly refuse to submit to a breath test” in the March 2011 incident, and “[o]rder[ ] the Department of Revenue to dismiss” the administrative action it had taken against his license as a result of the March 2011 incident. The amended petition does not refer to Boin's original petition, makes no reference to the 2012 amendment to § 302.060.1(9), and does not seek declaratory relief as to the

455 S.W.3d 509

purportedly retroactive application of the 2012 amendment to his case.

On May 14, 2013, the trial court held a hearing. The Director argued that Boin did not timely file a petition for review of the March 2011 revocation pursuant to §§ 302.311 and 577.041, which require that a driver must petition for judicial review of a revocation based on refusal to submit to a chemical test within 30 days of notice of the revocation. The Director also argued that Boin's petition was an impermissible collateral attack on the March 2011 revocation. Boin made no responsive argument at the May 14, 2013 hearing, and offered no evidence on the merits of the petition. At the conclusion of the brief hearing, that court stated, “I will let you both know whether or not I think you can proceed or whether it is a moot issue.”

On October 31, 2013, the court issued a judgment in which it found that the 2012 amendments to § 302.060.1(9) imposed an “extended revocation” on Boin due to the March 2011 incident, and that he first received notice of this “extended revocation” on August 28, 2012, when the 2012 amendments became effective. The court held that the initial filing of Boin's lawsuit on October 23, 2012 “was within the statutory thirty (30) days of receiving said notice.”2 Although no evidence had been presented concerning the factual allegations in Boin's amended petition, the court's judgment also found that, during the March 2011 incident, Boin “did in fact provide a breath sample when requested,” and that “[i]t was only...

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1 practice notes
  • Zeller v. Scafe, WD 77495
    • United States
    • Missouri Court of Appeals
    • March 3, 2015
    ...resolved all of the issues as to all of the parties in this case or certified the case for early appeal,2 the appeal must be dismissed. 455 S.W.3d 506Crest Const., 439 S.W.3d at 249 ; Ameriquest Mortg. Co. v. Gehrig, 245 S.W.3d 239, 241–43 (Mo.App.2007) ; Davis v. St. Luke's Home Health Car......
1 cases
  • Zeller v. Scafe, WD 77495
    • United States
    • Missouri Court of Appeals
    • March 3, 2015
    ...resolved all of the issues as to all of the parties in this case or certified the case for early appeal,2 the appeal must be dismissed. 455 S.W.3d 506Crest Const., 439 S.W.3d at 249 ; Ameriquest Mortg. Co. v. Gehrig, 245 S.W.3d 239, 241–43 (Mo.App.2007) ; Davis v. St. Luke's Home Health Car......

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