Danner v. Director of Revenue

• Court: Missouri Court of Appeals
• Writing for the Court: Before FENNER; FENNER
• Citation: Danner v. Director of Revenue, 919 S.W.2d 285 (Mo. App. 1996)
• Decision Date: 09 April 1996
• Docket Number: No. WD,WD
• Parties: Adrian DANNER, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant. 51564.

Page 285

919 S.W.2d 285

Adrian DANNER, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. WD 51564.

Missouri Court of Appeals Western District.

April 9, 1996.

Appeal from the Circuit Court of Platte County, Missouri; The Honorable Owens Lee Hull, Judge.

Charles L. Gooch, Jefferson City, for appellant.

Preston L. Cain, Jr., Kansas City, for respondent.

Before FENNER, C.J., P.J., and LOWENSTEIN and SMART, JJ.

FENNER, Chief Judge.

The Director of Revenue appeals from an order of the trial court setting aside the suspension of respondent Adrian Danner's driving privileges in Missouri.

Respondent was arrested for driving while intoxicated on November 13, 1994. A subsequent breath analysis test indicated that he had a blood alcohol concentration, by weight, of .105%. In that respondent's blood alcohol content equaled or exceeded .10%, his driving privilege was suspended by the Director pursuant to the administrative .10 BAC law, §§ 302.500--302.541, RSMo 1994. ¹

Respondent requested an administrative hearing which was held on January 18, 1995. The record reflects that the hearing officer's decision sustaining the suspension was mailed to respondent and his attorney on January 30, 1995. On March 3, 1995, respondent filed a petition for trial de novo in the Circuit Court of Platte County, Missouri. The Director of Revenue filed an entry of appearance and answer on April 4, 1995, alleging lack of subject matter jurisdiction due to untimely filing. The Director also filed a motion to dismiss for lack of subject matter jurisdiction, which motion was denied by the trial court. A trial was conducted and the trial court entered an order which set aside the suspension of respondent's driving privilege.

On appeal, the Director argues that the trial court erred in entering judgment because the court lacked subject matter jurisdiction. The Director argues that the respondent failed to timely file his petition for judicial review and, therefore, the court was without subject matter jurisdiction and obligated to dismiss the petition.

Section 302.530.6 and .7 relate to notice of a hearing officer's decision upon administrative review of suspension or revocation of a person's driver's license and appeal from the hearing officer's administrative decision.

Section 302.530.6 provides as follows:

6. The department shall promptly notify, by certified letter, the person of its decision including the reasons for that decision. Such notification shall include a notice advising the person that the department's decision shall be final within 15 days from the date of certification of the letter unless the person challenges the department's decision within that time period by filing an appeal in the circuit court in the county where the arrest occurred.

Furthermore, § 302.530.7 provides as follows:

7. Unless the person, within 15 days after being notified by certified letter of the department's decision, files an appeal for judicial review pursuant to § 302.535, the decision of the department shall be final.

The Director argues in the case at bar that the trial court lacked subject matter jurisdiction because respondent's petition for judicial review of his driver's license suspension was not filed within 15 days of the date that notice was mailed to respondent. It is the Director's position that the mailing of notice begins the time period for appeal. Respondent, on the other hand, argues that the time for appeal is tolled until notice is received. Respondent argues that since § 302.530 requires notice by certified mail that a return receipt or other proof of actual service is further necessarily required. Respondent argues that the Director failed to prove service of notice of the hearing officer's decision by means of a return receipt or otherwise.

"Return receipt" mail is not the same as certified mail. Under postal regulations, certified mail and "return receipt" mail are separate and distinct services. The cost for certified mail is $1.10 per item, in addition to postage, and is available only on first-class or priority mail. U.S. POSTAL SERVICE, ISSUE 49, DOMESTIC MAIL MANUAL § R900.5.0 (1995). The advantage of certified mail is that there is a record from the post office that the mail was presented to the post office for processing. "Return...