Jenkins v. Director of Revenue, No. WD

• Decision Date: 13 July 1993
• Docket Number: No. WD
• Citation: 858 S.W.2d 257
• Parties: Patricia Wallace JENKINS, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. 46426.
• Court: Missouri Court of Appeals

Page 257

858 S.W.2d 257

Patricia Wallace JENKINS, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. WD 46426.

Missouri Court of Appeals Western District.

July 13, 1993.

Christopher J. Jordan, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Rodney P. Massman, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Patricia Wallace Jenkins appeals from the trial court's judgment upholding the decision of the Department of Revenue (department) suspending the driver's license of Jenkins. Jenkins asserts on appeal that the trial court erred in suspending her driver's license because the department conducted an administrative hearing without proper statutory authority and, thus, lacked jurisdiction to issue an order. The judgment is affirmed.

On October 25, 1991 at approximately 10:30 p.m., Jenkins was arrested in Jefferson City, Missouri, for driving while intoxicated, § 577.010, RSMo 1986. ¹ The arresting officer testified that Jenkins exhibited indicia of intoxication and performed poorly on field sobriety tests. Jenkins was given a breath analysis test which revealed a blood alcohol content (BAC) of .16 percent. Due to Jenkins' BAC being over .13 percent, the arresting officer took possession of Jenkin's driver's license and issued a temporary driving permit which was valid for fifteen days. The arresting officer also issued Jenkins a "Notice of Suspension/Revocation of Your Driving Privilege" which stated that the effective date of suspension was November 9, 1991, fifteen days from the issuance of the notice. Because the original notice issued by the arresting officer did not contain the date of issuance, the Director sent Jenkins a new notice of suspension/revocation and a new temporary driving permit on October 31, 1991.

Jenkins requested an administrative hearing on November 1, 1991 in a letter written by her attorney, F. Randall Waltz, III, part of which stated:

It would be most appreciated if you would send me a copy of the notice of hearing including the date, time and location. Im (sic) scheduling same it would also be appreciated if you would consider my following conflicts which are: November 4, 5, 6, 7, 8, 12, 14, 18, 21; December 6, 9, 10, 12, 13, and 16. All other dates except one or two days in early January are currently open. Would it be possible to have this hearing scheduled at the Truman Building since this was a Jefferson City arrest and the underlying court case is scheduled in the Jefferson City Municipal Division of the Cole County Circuit Court even though the arrest was actually in Callaway County?

The Director sent Jenkins a letter on November 20, 1991 advising her that the administrative hearing was scheduled for December 12, 1991 at 2:30 p.m. in the Truman Building in Jefferson City. ² Chris Jordan, Waltz's law partner, represented Jenkins at the hearing on December 12, 1991. Hearing Officer White opened the hearing and, pursuant to Jordan's request, began to specify what documents in the file she considered relevant. One of these documents was the letter from Waltz described above. Hearing Officer White noted in reference to the letter that "[t]his is kind of unusual, but not that unusual. Sometimes we hold hearings not in the county of arrest if it is mutually agreeable between both parties." Jordan then stated that Jenkins did not agree to hold the hearing in Cole County and that Waltz's letter was not a request that the hearing be held in Cole County, but rather a request for an opinion as to whether the hearing could be held in Cole County. Jordan argued that § 302.530.3 requires the hearing to be conducted in the county of arrest.

Hearing Officer White agreed to reschedule the hearing in Callaway County. Jordan objected and argued that the action should be dismissed since the hearing had already begun in Cole County. Hearing Officer White terminated the hearing and continued the case to be rescheduled for hearing in Callaway County.

An administrative hearing was held on March 6, 1992 in Callaway County. The hearing officer upheld the suspension of the driver's license of Jenkins in a decision on March 18, 1992. Jenkins filed a petition for trial de novo in the Circuit Court of Callaway County on March 25, 1992. A trial de novo was held on May 13, 1992. The trial court issued findings of fact and conclusions of law sustaining the suspension of the driver's license of Jenkins on May 20, 1992. Jenkins filed a timely appeal on June 8, 1992.

Jenkins argues in her Point I that the trial court erred in sustaining the department's suspension of her driver's license because the department conducted an administrative hearing without proper statutory authority. Jenkins asserts that the department lacked jurisdiction to issue any valid determination necessary to suspend her license and that, as a result, her driving privileges should have been reinstated by the trial court.

An administrative agency possesses only such jurisdiction or authority as it has been granted by the legislature. Livingston Manor v. Dept. of Social Serv., 809 S.W.2d 153, 156 (Mo.App.1991). If an agency has not been granted the statutory power to consider a matter, then it cannot acquire subject matter jurisdiction over the matter. Id. The issuance, suspension and revocation of driver's licenses by the department are administrative functions derived from the state's police power to regulate driving for the protection of the public's welfare and safety. Tuggle v. Director of Revenue, 727 S.W.2d 168, 171 (Mo.App.1987). The legislature, in § 302.505, RSMo Cum.Supp.1992, specifically conferred authority upon the department to suspend and revoke driver's licenses in cases of driving while intoxicated. Section 302.505, RSMo Cum.Supp.1992, authorizes the department to suspend or revoke a driver's license when the requisite concentration of alcohol is evident in the license holder's blood or breath. Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985). Section 302.505.2, RSMo Cum.Supp.1992, requires that the department make its determination based on the report of the arresting officer and the breathalyzer test results. Id. This determination is final unless the person requests an administrative hearing within fifteen days in accordance with § 302.530.1.

Before reaching Jenkins' argument that the trial court erred in upholding the suspension of her driver's license, this court must examine whether, upon review of the suspension, Jenkins may raise issues arising from the administrative hearing. The legislature in the Suspension and Revocation Administrative Procedure Act, §§ 302.500-302.541, set forth an orderly process for review of the suspension or revocation of a driver's license in which an administrative hearing is conducted by the department prior to a trial de novo before the circuit court. Dove v. Director of Revenue, 704 S.W.2d 713, 715 (Mo.App.1986). Under this statutory scheme, an administrative hearing must have been requested and held by an agency with the authority to do so and an adverse decision issued before a petition for trial de novo can be granted. Marsala v. Director of Revenue, 793 S.W.2d 492, 494 (Mo.App.1990).

Section 302.535.1 specifies that the trial de novo shall be conducted according to the Missouri rules of civil procedure and not as an appeal of an administrative decision. The case law indicates that the trial de novo, although in theory an appeal of the administrative hearing, is an original proceeding and is not an exercise of review jurisdiction. Kenagy v. Director of Revenue, 719 S.W.2d 488, 490 (Mo.App.1986); Dove, 704 S.W.2d at 715. At the trial de novo, the parties are allowed to present new evidence, change trial strategy and confront adverse witnesses again without any restraints imposed by the prior administrative proceedings. Jarvis v. Director of Revenue, 804 S.W.2d 22, 24-25 (Mo. banc 1991). The trial court is not to consider or base its decision upon the evidence presented at the administrative hearing or the findings of the hearing officer. James v. Director of Revenue, 767 S.W.2d 604, 610 (Mo.App.1989); Kenagy, 719 S.W.2d at 490.

Although the nature of the trial court's review upon trial de novo is well-established, whether administrative hearing errors may be raised in an appeal subsequent to the trial de novo has not been addressed in the context of the Suspension and Revocation Administrative Procedure Act, §§ 302.500-302.541. This court finds persuasive the interpretation of the Motor Vehicle Financial Responsibility Law, §§ 303.010-303.370, which is based upon a statutory scheme similar to the Suspension and Revocation Administrative Procedure Act. The Motor Vehicle Financial Responsibility Law grants the Department of Revenue authority to suspend or revoke driver's licenses for failure to maintain motor vehicle insurance in accordance with the laws of Missouri. The case law interpreting the Motor Vehicle Financial Responsibility Law indicates that because the trial court's review of the department's administrative decision is a de novo appeal, any subsequent appeal is from the circuit court's judgment rather than from the administrative decision. Martens v. Director of Revenue, 819 S.W.2d 778, 780 (Mo.App.1991); King v. Director of Revenue, 805 S.W.2d 357, 358 (Mo.App.1991). Issues arising out of the administrative hearing are, therefore, not to be considered at the trial de novo or thereafter on appeal.

This court adopts the approach utilized by the Motor Vehicle Financial Responsibility cases, for use in the context of the Suspension and Revocation Administrative Procedure Act, that administrative hearing issues are not to be reviewed during the trial de novo or in subsequent appeals. Because the trial de novo affords the parties a broader right of review than is required by the state Constitution, Jarvis, 804 S.W.2d at...