McInerney v. Director of Revenue
| Decision Date | 29 February 2000 |
| Citation | 12 S.W.3d 403 |
| Parties | (Mo.App. E.D. 2000) James McInerney, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: ED76249 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis City, Hon. Thad F. Niemira
Counsel for Appellant: James A. Chenault III, Evan Joseph Buchheim and John Munson Morris III
Counsel for Respondent: Charles H. Billings
Opinion Summary: The Director of Revenue appeals the trial court's judgment reinstating the driving privileges of James McInerney.
REVERSED AND REMANDED.
Division Seven Holds: McInerney's failure to set forth facts to prove the petition was timely filed deprived the trial court of subject matter jurisdiction.
The Director of Revenue ("director") appeals the trial court's judgment reinstating the driving privileges of James McInerney ("driver"). The director claims the trial court lacked jurisdiction in that driver failed to meet his burden of proving his petition was timely filed. We agree, and reverse and remand.
Driver was arrested for driving while intoxicated on July 2, 1998. He struck two parked cars and demonstrated other signs of intoxication, such as smelling strongly of alcohol, having bloodshot eyes, exhibiting an unsteady stance, and slurring his speech.
Officer Nicholson ("officer") testified driver initially agreed to take a breathalyzer test, but refused when the time came to administer the breathalyzer. Officer also testified driver was advised of his rights under the Missouri Implied Consent Law. He handed driver Form 4323 ("form"). The form is a temporary driving permit stating that refusing to submit to a breathalyzer test results in surrender of a driver's license and driving privileges are revoked. The revocation becomes effective fifteen days from the date on the form. The form also sets forth the procedure for requesting a petition for review, including the thirty day filing requirement. Officer witnessed driver sign the form. Officer placed the form in driver's property bag.
Director revoked driver's driving privileges on July 18, 1998. Driver filed a petition for review on November 13, 1998, four months after the revocation.
Driver testified he refused to take the breathalyzer test, but stated he was never given the form, nor did he sign it. Driver visited an attorney the week following his arrest who told him the importance of this form and said driver would soon be receiving the form from director.
Driver testified he received the form from his attorney, but did not state the date of his receipt. The trial court found in favor of driver and instructed director to reinstate driver's license. This appeal followed.
The judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Walker v. Director of Revenue, 922 S.W.2d 57, 58 (Mo. App. 1996).
Director contends the trial court erred in denying the motion to dismiss in that the trial court lacked subject matter jurisdiction because driver failed to establish that his petition for review was timely filed. We agree.
A driver whose license has been revoked pursuant to section 577.041 RSMo (Cum. Supp. 1998) for failure to take a chemical test has thirty days after notice to file a petition for review. Section 302.311 RSMo 1994. The time limitation for filing a notice of review of the revocation of one's driver's license is triggered by the sending of the notice. Filla v. Director of Revenue, 873 S.W.2d...
To continue reading
Request your trial
-
Owen v. Director of Revenue
...proving facts that would authorize the trial court to exercise its jurisdiction pursuant to that statute. See McInerney v. Director of Revenue, 12 S.W.3d 403, 405 (Mo.App.2000); Filla v. Director of Revenue, 873 S.W.2d 325, 327 (Mo.App.1994); Ezenwa v. Director of Revenue, 791 S.W.2d 854, 8......
-
Boin v. Dir. of Revenue
...facts to prove the petition was timely filed deprived the circuit court of subject matter jurisdiction.Mc I nerney v. Dir. of Revenue, 12 S.W.3d 403, 405 (Mo.App.E.D.2000) (citations and internal quotation marks omitted).5 Therefore, if Boin's intention was to petition for judicial review o......
-
Floyd v. Director of Revenue, ED 81868.
...days after February 4, 2002. Id. Floyd's first point is denied.4 We next address Floyd's third point. Citing McInerney v. Director of Revenue, 12 S.W.3d 403 (Mo.App. E.D.2000), Director states that "In revocation cases, this court has held that the burden of proving lack of notice is on the......
-
Burt v. Director of Revenue, ED 87242.
...30 days from that date in which to file an appeal to the circuit court. Section 302.311 RSMo 2000; see also McInerney v. Director of Revenue, 12 S.W.3d 403, 405 (Mo.App. E.D.2000) (time limitation triggered by sending of notice). Burt's petition for review was filed on June 24, 2005, over f......