Gehrs v. Director of Revenue, 72063

• Decision Date: 17 March 1998
• Docket Number: No. 72063,72063
• Citation: 965 S.W.2d 360
• Parties: Kevin J. GEHRS, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

Page 360

965 S.W.2d 360

Kevin J. GEHRS, Appellant, v. DIRECTOR OF REVENUE, Respondent.

No. 72063.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 17, 1998.

Robert S. Adler, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James A Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent.

CRANDALL, Judge.

Kevin J. Gehrs appeals from a judgment of the trial court, dismissing as untimely his petition for trial de novo after an administrative hearing officer upheld the suspension of his driving privileges. We reverse and remand.

Gehrs was arrested on November 30, 1995 for driving while intoxicated. On that date the arresting officer gave Gehrs a Department of Revenue form notifying him that his license would be suspended. Attorney, Kevin C. Roberts, notified the Department of Revenue that he represented Gehrs and requested an administrative hearing. According to Gehrs, he hired attorney, Robert S. Adler, on December 18, 1995 to represent him. The administrative hearing was held on January 18, 1996. The administrative hearing officer held that Gehrs' driving privileges were to be suspended or revoked "as authorized by and required by Sections 302.505 and 302.525 RSMo." and found that there was probable cause Gehrs was driving while his blood alcohol content was .10 percent or greater. Robert Adler was listed as the attorney for Gehrs on the findings of fact and conclusions of law that were prepared by the hearing officer. On April 26, 1996, Gehrs filed a petition for trial de novo pursuant to section 302.311 RSMo 1994. He alleged that Robert Adler contacted the Department of Revenue in March 1996 to check on the status of his case and was advised that the findings and conclusions were mailed to Kevin Roberts on February 2, 1996. ¹ Gehrs also alleged that Adler first received a copy of the administrative hearing officer's findings and conclusions on or about March 28, 1996. The Director of Revenue (Director) filed a motion to dismiss, asserting that Gehrs' petition for trial de novo was untimely. The trial court found that Gehrs' petition for trial de novo was untimely and therefore it lacked subject matter jurisdiction. Gehrs appeals from this judgment.

A circuit court lacks subject matter jurisdiction when a petition for trial de novo is filed out of time after a hearing officer's decision regarding suspension of driving privileges. Danner v. Director of Revenue, 919 S.W.2d 285, 287 (Mo.App. W.D.1996). The trial court found in part that: (1) it is irrelevant whether Robert Adler was mailed the hearing officer's decision; (2) pursuant to section 302.530.6 RSMo 1994 Gehrs was properly notified of the hearing officer's decision and this section requires "nothing further;" (3) the time allowed for appeal of the hearing officer's decision suspending a driver's license is fifteen days from the date of certification of the letter giving notice of the hearing officer's decision; (4) the time for appeal started when the decision was mailed to Gehrs on February 2, 1996 and the last day for filing his petition was February 17, 1996, therefore making the petition Gehrs filed on April 26, 1996 untimely; and (5) Gehrs could not seek review of the hearing officer's decision under the general statute for review, section 302.311.

The salient issue is whether Gehrs' time to appeal for review of the hearing officer's decision is governed by section 302.311 or by section 302.530. Section 302.311 is a general statute that addresses the procedures for appealing the suspension or revocation of a driver's license. Marsala v. Director of Revenue, 793 S.W.2d 492, 494 (Mo.App.1990). Section 302.311 provides in part:

[i]n the event that a license is suspended or revoked by the director ... the licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice ... that a license is suspended or revoked.

(emphasis added).

Section 302.530 is a specific statute that addresses the procedures for administrative review when a person receives notice of suspension or revocation of driving privileges. Section 302.530.6 provides in part:

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 fifteen 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 where the arrest occurred.

Section 302.530.7 provides that "[u]nless the person, within fifteen days after being notified by certified letter of the department's decision, files an appeal for judicial review pursuant to section 302.535, the decision of the department shall be final."

We first consider if it is relevant whether Adler was mailed the hearing officer's decision. ² An administrative hearing was conducted pursuant to section 302.530. The Department of Revenue has promulgated regulations for the procedures to be used...