Pointer v. Director of Revenue, State of Mo., 66064

• Citation: 891 S.W.2d 876
• Decision Date: 31 January 1995
• Docket Number: No. 66064,66064
• Parties: Gary Dwain POINTER, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 876

891 S.W.2d 876

Gary Dwain POINTER, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. 66064.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 31, 1995.

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

Steven J. Bratten, Jefferson City, for respondent.

GARY M. GAERTNER, Judge.

Appellant, the Director of Revenue for the State of Missouri ("Director"), appeals from an order issued by the Osage County Circuit Court setting aside the denial of driving privileges of respondent Gary Dwain Pointer ("licensee") for ten years. We reverse.

The facts as set out in the record and Director's brief ¹ are as follows. On February 25, 1993, Director issued licensee a notice revoking his driving privileges as of February 1, 1993. Director asserted licensee had been convicted three times for violating Missouri statutes "relating to driving while intoxicated." The record shows licensee was convicted twice, on October 18, 1978, and on January 3, 1989, for violating RSMo § 577.010 (1986) (driving while intoxicated); and convicted once, on December 16, 1992, for violating RSMo § 577.012 (1986) (driving with an excessive blood alcohol content).

Pursuant to RSMo §§ 302.302 ² and 302.304 (SUPP.1993)³, Director assessed twelve points against licensee's license and revoked it for one year. Director also asserted that, pursuant to RSMo § 302.060(9) (Supp.1993) ⁴, licensee would not be issued a new license until the expiration of ten years from the date of his last conviction.

On March 24, 1993, licensee filed a petition for review in circuit court. In his petition licensee alleged: (1) Director's proposed revocation of his license on points was improper because he had not been convicted in courts of competent jurisdiction for a sufficient number of alcohol-related driving offenses to warrant imposition of the penalty points proposed by Director; (2) revocation was improper because licensee's underlying convictions were not convictions for traffic offenses warranting or supporting imposition of penalty points; (3) the underlying convictions used by Director to revoke licensee's license were improper "in that no court of proper jurisdiction convicted [licensee] for any of the offenses and in that the materials forwarded to [Director] by the courts involved are fatally defective on their face and the alleged convictions reported thereon are a nullity;" and (4) loss of his license would harm licensee's employment and livelihood. Nowhere in his petition did licensee address the denial of his driving privileges for ten years pursuant to RSMo 302.060(9).

On April 1, 1993, the court entered an order staying the revocation of licensee's driver's license. On April 27, 1993, Director filed an answer asserting revocation was proper, arguing Director's assessment of points and imposition of a one year revocation upon receipt of the driving convictions was mandated by statute. Director further argued the only issue that could be addressed in the petition for review was whether Director accurately assessed the points and imposed the appropriate penalty, and that licensee could not collaterally attack the validity of the underlying convictions.

On March 3, 1994, the case was heard by the circuit court and taken under submission. On March 28, 1994, the court entered an order. The court made the following findings: nothing in the record reflected that licensee's December 16, 1992, conviction for driving with an excessive blood alcohol content ("BAC") was before a judge who was an attorney, a prerequisite for application of RSMo § 302.060(9); the statutory term "relating to driving while intoxicated" referred to a specific statutory offense and specifically did not refer to RSMo § 577.012 "BAC offenses;" and licensee had not been convicted more than twice for offenses "relating to driving while intoxicated" since his first conviction, because his December 16, 1992, conviction was not for an offense "relating to driving while intoxicated." According to the court, RSMo § 302.060(9) was not applicable to the case at hand. The court therefore sustained Director's one-year revocation of licensee's driver's license, but reversed the ten-year denial of licensee's driving privileges. This appeal ensued.

Director raises one point on appeal. Director contends the circuit court erred in setting aside the ten-year denial of licensee's driving privileges because the validity of the denial was not properly before that court. Director first argues this issue was not raised in licensee's petition for review, and therefore never properly before the court. Director then argues licensee had neither fully served the one-year "points" revocation nor had an application for reissuance of a new license been denied, as was required to challenge the application of RSMo § 302.060(9).

Under RSMo § 302.311 (1986), appeals from circuit court decisions regarding petitions for review are "taken as in civil cases." Accordingly, we review the judgment of the circuit court rather than the decision of Director, and affirm the judgment 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. Silman v. Director of Revenue, 880 S.W.2d 574, 576 (Mo.App.S.D.1994).

Regarding review of actions involving driver's licenses, we have held the circuit court's grant of relief improper where it was based upon grounds not raised in the petition for review. Stallmann v. Director of Revenue, 816 S.W.2d 6, 7 (Mo.App.E.D.1991); Cillo v. Director of Revenue, 782 S.W.2d 81, 82 (Mo.App.E.D.1989). ⁵ Here, we agree with Director that no issues concerning the validity of RSMo § 302.060(9) were raised by licensee in his petition for review. All allegations made in licensee's petition concerned the propriety of the one-year "points" revocation of his driver's license, which the circuit court sustained.

Furthermore, we agree with Director's contention that the circuit court prematurely invalidated the ten-year denial of licensee's driving privileges. The Missouri Supreme Court recently held that challenges to Director's denial of driving privileges pursuant to RSMo 302.060(9) are non-justiciable, when such challenges are made before the licensee has had his or her application for a new license denied by Director pursuant to RSMo § 302.060(9). Adkisson v. Director of Revenue, 891 S.W.2d 131, 133 (Mo. banc 1995).

According to the Supreme Court, "during the period of revocation required by [RSMo] § 302.304.6, no justiciable controversy exists as to whether a driver may be denied a license under [RSMo] § 302.060(9)." Adkisson, 891 S.W.2d at 132. The Supreme Court...