Allen v. Director of Revenue

845 S.W.2d 724, 1993 Mo. App. LEXIS 109
CourtMissouri Court of Appeals
DecidedJanuary 26, 1993
DocketNo. WD 45900
StatusPublished
Cited by8 cases

This text of 845 S.W.2d 724 (Allen v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Director of Revenue, 845 S.W.2d 724, 1993 Mo. App. LEXIS 109 (Mo. Ct. App. 1993).

Opinion

PER CURIAM:

Robert Eugene Allen’s driving privilege was suspended pursuant to the provisions of §§ 302.505.1 and 302.525.2(1), RSMo 1986, after he was arrested upon probable cause to believe he was driving a motor vehicle while the alcohol concentration in his blood was thirteen-hundredths of one percent or greater. Mr. Allen appealed the suspension to the Department of Revenue. After an administrative hearing, his suspension was affirmed. Mr. Allen then filed a petition for trial de novo with the Circuit Court of Clay County. The circuit court ordered the Director of Revenue to reinstate the driver’s license of Mr. Allen. The Director appeals.

The judgment is affirmed.

Only those facts necessary for the disposition of this appeal are recited. Officer David J. Caudle worked “part-time” for the Holt, Missouri, Police Department. The parties stipulated that Officer Caudle was not certified by the Director of Public Safe[725]*725ty, under Chapter 590, RSMo Supp.1988. There were four other officers working for the department in February, 1991. The City of Holt, Missouri, is a fourth class city,1 with a population of 311. Holt lies in Clay County, Missouri, a first class county with a non-charter form of government.

On February 10, 1991, Officer Caudle observed Mr. Allen driving 50 m.p.h. in a 35 m.p.h. zone. After stopping Mr. Allen, Officer Caudle noticed the odor of alcoholic beverage about Mr. Allen and his automobile, that Mr. Allen’s speech was slurred and that he stumbled when exiting his automobile. Mr. Allen admitted that he had been drinking. Officer Caudle arrested Mr. Allen for driving while intoxicated, a violation of a municipal ordinance of the City of Holt. Officer Caudle transported Mr. Allen to the Holt police station, and then continued to Kearney, Missouri, where a highway patrolman gave Mr. Allen a breath test to determine his blood alcohol concentration (BAC). The breathalyzer test showed that Mr. Allen had a BAC of twenty-one-hundredths of one percent.

At the trial de novo, the circuit court found in favor of Mr. Allen on the issue of certification, specifically:

[T]hat arresting Officer David Caudle was not certified according to Chapter 590 R.S.Mo., and thus, pursuant to Chapter 302.510(3) R.S.Mo., the suspension/revocation of Respondent’s license under the above statutes was invalid.

The Director appeals, claiming that § 590.150, RSMo Supp.1988, exempts the City of Holt and Officer Caudle from the certification requirements of §§ 590.100 to 590.180, RSMo Supp.1988, and that such exemption satisfies the certification requirement of § 302.510.3, RSMo 1986. Therefore, the Director argues that the municipal alcohol related traffic offense could be the basis for suspension of Mr. Allen’s driver’s license.

In construing a statute, the court must ascertain the intent of the legislature from the language of the statute, if possible, and give effect to that intent. Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 340 (Mo. banc 1991). The court is to do so by considering the usual and ordinary meaning of the words used in the statute. Id. Legislative intent may be inferred either from the plain and ordinary meaning of the words of the statute or from the statute’s purpose. Bd. of Reg. for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App.1991).

The Director suspended Mr. Allen’s driver’s license under § 302.505.1, RSMo 1986 (amended 7/1/92), which 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 he was driving a motor vehicle while the alcohol concentration in the person’s blood or breath was thirteen-hundredths of one percent or more by weight of alcohol in his blood, based on the definition of alcohol concentration in section 302.500.

However, § 302.510.3, RSMo 1986 (amended 7/1/92), states that:

A county or municipal ordinance prohibiting driving while intoxicated or a county or municipal alcohol related traffic offense may not be the basis for suspension or revocation of a driver’s license pursuant to sections 302.500 to 302.540, unless the arresting law enforcement officer, other than an elected peace officer or official, has been certified by the director of the department of public safety pursuant to the provisions of sections 590.100 to 590.150, RSMo.

(Emphasis added). Certification of the arresting officer is an essential element of the state’s case in an action to suspend driving privileges as a result of arrest for a county or municipal violation of a “DWI" ordinance. Ashline v. Director of Revenue, 707 S.W.2d 432, 433 (Mo.App.1986).

The Director argues that Officer Caudle was exempt under § 590.150, RSMo Supp.1988, and the requirement of certification is satisfied. Section 590.150, RSMo Supp.1988 states, in part:

[726]*726The provisions of sections 590.100 to 590.180 shall not apply to a political subdivision having a population of less than two thousand persons or which does not have at least four full-time paid peace officers unless such political subdivision is located in a county of the first class having a charter form of government; provided, however, the governing body of the political subdivision may by order or ordinance elect to come under [these] provisions.

(Emphasis added). The Director offered evidence that Holt had a population of 311 at the time of the 1990 census, and has four, or at the time of the offense, five part-time officers.

In support of his claim that the exemption from certification for small political subdivisions under § 590.150, RSMo Supp. 1988, alleviated the requirement of certification, the Director relies on Kohlhoff v. McNeill, 725 S.W.2d 37, 38 (Mo.App.1986). In Kohlhoff, the Eastern District of this court held that where the evidence established that the peace officer was exempt from the certification requirement because he had been appointed before December 31, 1978,2 the arrest satisfied the certification requirement for license suspension. The Eastern District noted that the arresting officer in Kohlhoff had been on the police force for sixteen years. Id. The court’s notation of the arresting officer’s length of service is significant since its inclusion indicates that the basis of the holding of Kohl-hoff appears to be that for such officers the additional training specified in §§ 590.-100 to 590.180, RSMo Supp.1988, would likely be superfluous.

The Director argues, and it is acknowledged, that officers “grandfathered-in” were not necessarily long-term law enforcement officers because the exemption for officers hired before December 31, 1978 applied to all officers hired before that date regardless of length of service.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hlavacek v. Director of Revenue
129 S.W.3d 374 (Missouri Court of Appeals, 2003)
Medley v. Director of Revenue
950 S.W.2d 879 (Missouri Court of Appeals, 1997)
Roach v. Director of Revenue
941 S.W.2d 27 (Missouri Court of Appeals, 1997)
Matthews v. Director of Revenue
938 S.W.2d 279 (Missouri Court of Appeals, 1997)
Canter v. Director of Revenue
900 S.W.2d 2 (Missouri Court of Appeals, 1995)
Cooley v. Director of Revenue
896 S.W.2d 468 (Supreme Court of Missouri, 1995)
Hartman v. Director of Revenue
884 S.W.2d 743 (Missouri Court of Appeals, 1994)
Elliot v. Director of Revenue
882 S.W.2d 745 (Missouri Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
845 S.W.2d 724, 1993 Mo. App. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-director-of-revenue-moctapp-1993.