Hertel v. Director of Revenue

Missouri Court of Appeals

Hertel v. Director of Revenue

887 S.W.2d 775, 1994 Mo. App. LEXIS 1832, 1994 WL 663352

CourtMissouri Court of Appeals

DecidedNovember 29, 1994

DocketNo. 65972

StatusPublished

Cited by4 cases

This text of 887 S.W.2d 775 (Hertel 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.

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Hertel v. Director of Revenue, 887 S.W.2d 775, 1994 Mo. App. LEXIS 1832, 1994 WL 663352 (Mo. Ct. App. 1994).

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Opinion

REINHARD, Presiding Judge.

The Director of Revenue (Director) appeals the circuit court’s order restoring petitioner’s driving privileges after they had been suspended pursuant to § 302.505, RSMo Supp.1993.¹ Petitioner’s suspension was sustained after an administrative hearing, and petitioner filed a petition for trial de novo in the circuit court pursuant to § 302.535, RSMo 1986. After a hearing, the circuit court restored petitioner’s driving privileges. We remand.

According to the trial court’s order, petitioner was stopped on August 30, 1993 while operating a motor vehicle. The court found the officer had probable cause to arrest petitioner but that petitioner did not have a blood alcohol content (BAC) by weight of .10% or more. The court made a finding (immediately after the BAC finding) that the “[i]mplied consent warning contained the word may instead of shall.”²

The Director notes that she asked for a transcript from the trial de novo, but was informed by the court that none was made. She asks that we either remand the cause so an adequate record can be produced, or alternatively, reverse the court’s order on the existing record (which is sparse notwithstanding the absence of the transcript).³ The Director’s latter request rests on her assertion that the trial court found the BAC test inadmissible because of the implied consent issue, and that that was the basis of the court’s order restoring petitioner’s driving privileges.⁴ However, it is not at all clear from the record that this is the case. Thus, we cannot resolve this appeal on that basis.

We agree with the Director that the cause should be remanded due to the inadequate record. We note this is not a case where the Director neglected to furnish a record which had been prepared; the Director did request a transcript but the trial court apparently had not made one. See, e.g., Koehr v. Director of Revenue, 813 S.W.2d 363 (Mo.App.1991); see, also, Vogel v. Director of Revenue, 804 S.W.2d 432 (Mo.App.1991). Thus, we remand so that an adequate record may be produced.

GARY M. GAERTNER and CRAHAN, JJ., concur.

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REINHARD, Presiding Judge.

The Director of Revenue (Director) appeals the circuit court’s order restoring petitioner’s driving privileges after they had been suspended pursuant to § 302.505, RSMo Supp.1993.¹ Petitioner’s suspension was sustained after an administrative hearing, and petitioner filed a petition for trial de novo in the circuit court pursuant to § 302.535, RSMo 1986. After a hearing, the circuit court restored petitioner’s driving privileges. We remand.

According to the trial court’s order, petitioner was stopped on August 30, 1993 while operating a motor vehicle. The court found the officer had probable cause to arrest petitioner but that petitioner did not have a blood alcohol content (BAC) by weight of .10% or more. The court made a finding (immediately after the BAC finding) that the “[i]mplied consent warning contained the word may instead of shall.”²

The Director notes that she asked for a transcript from the trial de novo, but was informed by the court that none was made. She asks that we either remand the cause so an adequate record can be produced, or alternatively, reverse the court’s order on the existing record (which is sparse notwithstanding the absence of the transcript).³ The Director’s latter request rests on her assertion that the trial court found the BAC test inadmissible because of the implied consent issue, and that that was the basis of the court’s order restoring petitioner’s driving privileges.⁴ However, it is not at all clear from the record that this is the case. Thus, we cannot resolve this appeal on that basis.

We agree with the Director that the cause should be remanded due to the inadequate record. We note this is not a case where the Director neglected to furnish a record which had been prepared; the Director did request a transcript but the trial court apparently had not made one. See, e.g., Koehr v. Director of Revenue, 813 S.W.2d 363 (Mo.App.1991); see, also, Vogel v. Director of Revenue, 804 S.W.2d 432 (Mo.App.1991). Thus, we remand so that an adequate record may be produced.

GARY M. GAERTNER and CRAHAN, JJ., concur.

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887 S.W.2d 775, 1994 Mo. App. LEXIS 1832, 1994 WL 663352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hertel-v-director-of-revenue-moctapp-1994.

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