Weiland

• Decision Date: 14 November 2000
• Citation: 32 S.W.3d 628
• Parties: (Mo.App. W.D. 2000) . Julie T. Weiland, Appellant v. Director of Revenue, Respondent. Case Number: WD57662 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

32 S.W.3d 628 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Julie T. Weiland, Appellant v. Director of Revenue, Respondent.

Case Number: WD57662

Missouri Court of Appeals Western District

Handdown Date: 11/14/2000

Appeal From: Circuit Court of Clay County, Hon. Anthony R. Gabbert

Counsel for Appellant: Jeffrey S. Eastman

Counsel for Respondent: Evan J. Buchheim

Opinion Summary:

Julie Weiland appeals from a judgment following trial de novo in the circuit court in which the trial court affirmed the suspension of her drivers' license pursuant to section 302.505.1, RSMo. Cum. Supp. 1996.

REVERSED AND REMANDED.

Division holds:

(1) The trial court erroneously declared and applied the law in upholding the suspension of her drivers' license base upon a finding that Weiland had "actual physical control of a motor vehicle while the alcohol concentration in her blood was .10% or more by weight." In 1996, the Legislature amended its definitions of "driving" under section 577.001.1 by removing the "actual physical control" language, and accordingly, "actual physical control over a motor vehicle" is no longer sufficient to support the suspension of a driver's license under section 302.505.1.

(2) The trial court did not render a finding regarding whether Weiland was "driving" or "operating" an automobile at the time of her arrest and the record before this Court is insufficient to determine whether the trial court could have found from the evidence that Weiland was arrested upon probable cause to believe she was "driving" or "operating" a motor vehicle while the alcohol concentration in her blood was .10% or more by weight. Accordingly, the cause must be remanded to the trial court for further findings.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: REVERSED AND REMANDED. Spinden, C.J., Lowenstein, Breckenridge, Smart, Stith, Smith, Howard, Newton, Holliger, JJ., and Turnage, S.J., concur.

Opinion:

On December 18, 1998, Appellant Julie T. Weiland was arrested and charged with driving while intoxicated in the state of Missouri. That same day, acting on behalf of Respondent, Director of Revenue, the arresting officer served Weiland with a Notice of Suspension of Driving Privileges for allegedly driving a motor vehicle while the level of alcohol concentration in her blood exceeded .10% or more by weight.

An administrative hearing on the suspension of Weiland's driver's license was held on January 18, 1999. On March 20, 1999, the Missouri Department of Revenue issued an order sustaining the suspension of Weiland's license.

On March 31, 1999, Weiland filed a Petition for Trial De Novo in the Circuit Court of Clay County. On August 30, 1999, the Circuit Court entered its amended judgment stating:

Now on this 30th day of Aug., 1999, the Court having considered the evidence, finds and concludes that based upon a preponderance of the evidence Petitioner is found to have been arrested upon probable cause to believe Petitioner was in actual physical control of a motor vehicle while the alcohol concentration in her blood was .10% or more by weight.

THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that the suspension or revocation of Petitioner's driver's license in the State of Missouri is authorized and required by Sections 302.500 through 302.541, RSMo . 1994 and RSMo . Supp. 1996.

(emphasis added).

Thereafter, Weiland timely filed a notice of appeal with this court. Oral arguments were held on April 5, 2000, and this Court handed down a Per Curium Order Opinion on May 2, 2000, affirming the suspension of Weiland's driving privileges. Weiland v. Director of Revenue, No. 57662, slip op. (Mo. App. W.D. May 2, 2000). On May 15, 2000, Weiland filed a "Motion For Rehearing Or, In The Alternative, For Transfer To The Supreme Court." We granted Weiland's motion for rehearing and denied her motion for transfer to the Supreme Court. Rehearing was conducted before the Court en banc on July 12, 2000.

In her sole point on appeal, Weiland contends that the trial court erred in sustaining the suspension of her operating privileges because the finding that she was arrested upon probable cause to believe that she was in "actual physical control" of a motor vehicle while intoxicated is insufficient as a matter of law to support a suspension. She asserts that the statutory definition of "driving" no longer includes "actual physical control" and that the trial court erred in applying that language.

In reviewing a driver's license suspension or revocation case, we will affirm the trial court's 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Soval v. Director of Revenue, 2 S.W.3d 854, 856 (Mo. App. W.D. 1999). If the trial court erroneously declared or applied the law, its judgment will be afforded no deference on appeal. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo. App. W.D. 1998).

Section 302.505 authorizes the suspension or revocation of a person's driving privileges for driving while intoxicated. That section states:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight. . . .

Section 302.505.1, RSMo. Cum. Supp. 1996; Rinne v. Director of Revenue, 13 S.W.3d 658, 659 (Mo. App. W.D. 2000). Accordingly, when a suspension or revocation is challenged, the Director has the burden of proving by a preponderance of the evidence that: (1) the licensee was arrested upon probable cause to believe that she was driving in violation of an alcohol related offense and (2) that the licensee had been driving with a blood alcohol content of .10 percent or greater. Rinne, 13 S.W.3d at 659; Haas v. Director of Revenue, 975 S.W.2d 483, 484 (Mo. App. E.D. 1998).¹

Section 302.505.1 does not define the term "driving." However, the case law has applied the definition of "driving" set forth in section 577.001.1, the analogous criminal DWI statute, when considering license suspension or revocation cases under section 302.505.1. Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo. App. W.D. 1998); Chinnery v. Director of Revenue, 885 S.W.2d 50, 52 (Mo. App. W.D. 1994).²

Prior to 1996, Section 577.001.1 provided that, "the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating or being in actual physical control of a motor vehicle." Section 577.001.1, RSMo 1994 (underline emphasis added). In 1996, however, the legislature amended section 577.001.1 to read as follows: "As used in this chapter, the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating a motor vehicle." Section 577.001.1, RSMo 1996 (underline emphasis added). Notably, in amending section 577.001.1, the legislature chose to delete the phrase "being in actual physical control of" a motor vehicle from the definitions of "driving" and "operating." Accordingly, prior to 1996, being in "actual physical control" of a vehicle constituted "driving" or "operating" as defined by section 577.001.1. However, as a result of the 1996 changes to the definitions of "driving" and "operating," being in "actual physical control"³ of a vehicle no longer constitutes "driving" or "operating." Section 577.001.1, RSMo 1996.

Since section 302.505.1 requires a finding that the licensee was arrested upon probable cause to believe that she was "driving" a motor vehicle while the alcohol level in her blood, breath or urine was .10% or more by weight, and "actual physical control" no longer constitutes "driving" under the applicable statutory definition, the trial court's finding that Weiland was in "actual physical control" of a motor vehicle is insufficient to support the suspension of Weiland's driver's license under section 302.505.1. Accordingly, the circuit court erroneously declared and applied the law in its judgment suspending Weiland's license, and the judgment must be reversed.

The Director contends that, even if the definition of "driving" found in section 577.001.1 does apply to section 302.305 proceedings, Weiland's conduct constituted "operating" a vehicle under that definition. While the record before this court is sufficient to determine that the circuit court erroneously stated and applied the law by relying on its finding of "actual physical control" in rendering its judgment, the record does not contain a transcript of the proceedings or any other documentation from the circuit court stating what evidence was before it.⁴ We cannot determine from the record before us whether the circuit court could have found from the evidence before it that Weiland was arrested upon probable cause to believe she was "driving" ...