Justis v. Wilson, Dir., of Revenue

• Decision Date: 31 May 2000
• Parties: (Mo.App. W.D. 2000) Richard E. Justis, Respondent, v. Quinton Wilson, Director of Revenue, Appellant. WD57203 0
• Court: Missouri Court of Appeals

18 S.W.3d 606 (Mo.App. W.D. 2000)

Richard E. Justis, Respondent, v. Quinton Wilson, Director of Revenue, Appellant.

WD57203

Missouri Court of Appeals Western District

05/31/2000

Appeal From: Circuit Court of Henry County, Hon. Wayne P. Strothmann

Counsel for Appellant: James A. Chenault, III

Counsel for Respondent: Dan K. Purdy

Opinion Summary: The Director of Revenue appeals a circuit court judgment setting aside the revocation of Richard Justis's driver's license for an accumulation of points. The circuit court set aside the revocation because it was not supported by competent and substantial evidence.

Division Four holds: (1) The Director presented competent and substantial evidence that Justis's conviction resulted in the assessment of twelve points under section 302.302.1.

(2) The Director had no discretion under section 302.04.7 but to revoke Justis's license. So, as a matter of law, his license should be revoked for a period of one year.

(3) Justis received sufficient notice under section 302.304.1 even though the notice incorrectly listed a DWI conviction rather than a BAC conviction.

Patricia Breckenridge, Chief Judge

The Director of Revenue (Director) appeals from a judgment of the circuit court setting aside the revocation of Richard Justis's driver's license for an accumulation of points. The circuit court set aside the revocation because it was not supported by competent and substantial evidence. Because this court finds that (1) the Director presented competent and substantial evidence that Mr. Justis's conviction resulted in the assessment of twelve points under section 302.302.1., RSMo Cum. Supp. 1997,¹ (2) the Director had no discretion under section 302.304.7, but to revoke Mr. Justis's license, and (3) Mr. Justis received sufficient notice under section 302.304.1, the cause is reversed and remanded with instructions.

Factual and Procedural History

On September 21, 1998, Mr. Justis pled guilty to the charge of driving with excessive blood alcohol content (BAC) in the Circuit Court of Henry County, Missouri. When the court reported the conviction to the Director, the court incorrectly reported that Mr. Justis had been convicted of driving while intoxicated (DWI). On October 30, 1998, Mr. Justis was issued a notice from the Director, pursuant to section 302.304, indicating that his driving privilege would be revoked for one year due to an accumulation of points for traffic convictions. The notice stated that the points added to Mr. Justis's record resulted from the following convictions: (1) 10/29/98² Driving while intoxicated -- 12 points; (2) 8/27/97 Speeding -- 3 points; (3) 10/24/96 Fail to yield right of way -- 2 points. On that same day, Mr. Justis was issued a second notice from the Director, which stated that his privilege to drive would be permanently denied, pursuant to section 302.060.

Mr. Justis filed a petition for judicial review, pursuant to section 302.311, RSMo 1994, in which he asserted that he had not been convicted for DWI, section 577.010, RSMo 1994, as indicated on the notice, but was in fact convicted for BAC, section 577.012. A hearing was held, at which time Mr. Justis made clear that he was appealing the point suspension, not the permanent denial of his driving privileges. During the hearing, Mr. Justis offered into evidence a copy of his judgment and sentence for BAC. The Director offered into evidence a certified copy of Mr. Justis's driving record. The record showed that, in addition to the conviction on September 21, 1998, Mr. Justis had nine prior DWI convictions. The Director told the court that while the notice was technically inaccurate for listing DWI instead of BAC, Mr. Justis was convicted of BAC and since it was not his first DWI or BAC conviction, the point value would be the same for a conviction under either charge. The circuit court took the case under advisement and stated, "So in essence, the argument boils down to they put in were driving while intoxicated in their notice, they should have put BAC. It would not change the point value under RSMo 302.302. They're one in the same points." The circuit court subsequently issued a judgment setting aside the revocation of Mr. Justis's license for one year due to an accumulation of points. The circuit court stated, in pertinent part, in its judgment:

The notice that was mailed to Plaintiff . . . indicates that twelve (12) of those accumulated points were assessed as a result of a driving while intoxicated conviction that was received and processed by the Department of Revenue on October 29, 1998. Plaintiff maintains that this assessment of points was in error, because he was not, in fact, convicted of driving while intoxicated. Plaintiff offered Exhibit #1, a copy of the sentence and judgment in case number CR498-695M arising out of this Court. The Court takes judicial notice of the proceedings in that case, which reflect that Plaintiff was convicted of operating a motor vehicle with blood alcohol content over .10 percent (B.A.C.) and operating a motor vehicle with defective equipment.

The circuit court noted that the Director had the burden of proof and then held:

Defendant maintained at the hearing herein that "it doesn't make any difference" in that a conviction for driving with excess blood alcohol content would also result in the assessment of twelve (12) points against Plaintiff's drivers license, and result in a revocation. While that may or may not be the case, the Court is not going to speculate as to what the result might be if the proper convictions are shown on Plaintiff's driving record.

The judgment concluded with the statement that the revocation of Mr. Justis's license was set aside because the revocation was not supported by competent and substantial evidence.

Five days after the hearing, the Henry County Circuit Court, the court from which Mr. Justis's conviction for BAC originated and the same court which issued the judgment, sent the Director a driving record revision request to amend the charge of DWI that was reported incorrectly to BAC. The Director subsequently filed a motion for new trial and to set aside judgment that was heard and denied. The Director appeals.

Standard of Review

Section 302.311, RSMo 1994 governs the procedures and scope of review to be followed in proceedings concerning petitions for review of driver's license revocations. Brown v. Director of Revenue, 772 S.W.2d 398, 400 (Mo. App. 1989). It reads, in pertinent part:

In the event an application for a license is . . . revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court . . . 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 . . . revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to . . . sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. . . .

Section 302.311, RSMo 1994.

This court reviews the judgment of the circuit court rather than the Director's decision. Silman v. Director of Revenue, 880 S.W.2d 574, 575 (Mo. App. 1994). The judgment of the circuit court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Point on Appeal

The Director argues in his sole point on appeal that the circuit court erred in setting aside the revocation of Mr. Justis's driving privileges, in that he had committed an offense requiring the revocation of his license, whether the conviction was for DWI or BAC. Specifically, the Director argues that section 302.302.1(8) mandates that twelve points be assessed for either a second or subsequent BAC conviction or a second or subsequent DWI conviction and that section 302.304.7 requires...