Lawrence v. Director of Revenue

354 S.W.3d 215, 2011 Mo. App. LEXIS 1253, 2011 WL 4367337
CourtMissouri Court of Appeals
DecidedSeptember 20, 2011
DocketNo. ED 95433
StatusPublished

This text of 354 S.W.3d 215 (Lawrence 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
Lawrence v. Director of Revenue, 354 S.W.3d 215, 2011 Mo. App. LEXIS 1253, 2011 WL 4367337 (Mo. Ct. App. 2011).

Opinion

ROBERT G. DOWD, JR., Presiding Judge.

Norris Lawrence (“Driver”) appeals from the circuit court judgment sustaining the suspension of Driver’s driving privileges. Driver asserts the circuit court erred in sustaining the suspension of Driver’s driving privileges and declaring no statute of limitations applies to the Director of Revenue (“the Director”) in imposing an administrative alcohol suspension. We affirm.

On October 23, 2007, Officer Daur No-dari, with the University City Police Department, observed Driver’s vehicle failing to stop at a stop sign and turning without a turn signal. Officer Nodari pulled the vehicle over and made contact with Driver. Officer Nodari noticed a strong odor of alcohol on Driver’s breath. Officer Nodari asked Driver to step out of the vehicle, and he advised Driver that he was going to administer a series of field sobriety tests. Officer Nodari asked Driver if he had been drinking, and Driver responded that he [217]*217had four or five bottles of beer at a bar in University City.

Driver could not successfully complete the field sobriety tests. Officer Nodari observed that Driver was swaying and wobbling. Officer Nodari arrested Driver and transported him to the University City police station. At the police station, Officer Nodari administered a breath test, which showed Driver’s blood alcohol content (“BAC”) was .128 percent.

Officer Nodari did not seize Driver’s license or personally serve notice of the suspension or revocation on Driver. Officer Nodari did not send an administrative packet to the Department of Revenue (“the DOR”) to begin the suspension of Driver’s driving privileges. Office Nodari collected the information, including the report, and sent it to the police department’s clerk division, which handles administrative paperwork.

Approximately eighteen to twenty months later, the Director notified Driver of an administrative suspension of his driving privileges. Driver timely requested an administrative hearing to contest the suspension. A DOR hearing officer sustained the suspension of Driver’s driving privileges. Driver filed an application for a trial de novo in the circuit court.

On October 7, 2009, a trial was held before a commissioner in the circuit court. Driver argued the Director’s action in suspending his driving privileges was untimely, and was barred by the statute of limitations and laches. The commissioner agreed to proceed with the trial but to accept briefing on the issue subsequent to the trial. The commissioner found that the arresting officer had probable cause to arrest Driver for driving while intoxicated or for an alcohol-related offense, and that Driver had a BAC of .08 percent or more by weight. Driver filed a motion for rehearing, which was granted.

Thereafter, the circuit court issued its judgment finding Driver was arrested upon probable cause to believe he had committed an alcohol-related offense. The circuit court further found the chemical testing of Driver’s breath revealed a BAC of .08 percent or more by weight. The circuit court further found “no statute of limitations exists governing the time frame the [DOR] must impose administrative suspension/revocation actions.” As a result, the circuit court sustained the suspension of Driver’s driving privileges. This appeal follows.

In his sole point, Driver asserts the circuit court erred in sustaining the suspension of Driver’s driving privileges. Driver maintains the circuit court erroneously declared and misapplied the law in finding no statute of limitations applies to the Director in imposing an administrative alcohol suspension and denying Driver’s untimeliness objections. We disagree.

We must affirm the trial court’s judgment unless substantial evidence does not support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Lane v. Director of Revenue, 212 S.W.3d 169, 170 (Mo.App. E.D.2007).

Section 302.520, RSMo Cum.Supp. 2007, provides that when chemical test results showing a BAC of .08 percent or more by weight are available to the arresting officer, he shall take possession of the arrested driver’s license and personally serve notice of the suspension or revocation on the arrested driver. Officer No-dari testified that he did not take Driver’s license at the time of the arrest. In addition, Officer Nodari did not personally serve Driver with notice of a suspension or revocation. However, “[a]n arresting officer’s failure to personally serve notice ac[218]*218cording to section 302.520.1 is not fatal if the driver subsequently receives notice by mail, as allowed by section 302.515.” Lane, 212 S.W.3d at 170.

Section 302.510, RSMo Cum.Supp.2007, provides that the arresting officer shall forward to the DOR a report of all information relevant to the enforcement action. Officer Nodari did not send an administrative packet to the DOR. Officer Nodari collected the information, including the report, and sent it to the police department’s clerk division, which handles administrative paperwork.

However, Section 302.515.1, RSMo 2000, provides that the DOR shall issue a notice of suspension or revocation, “[i]f the department determines that the person is subject to license suspension or revocation, and if notice of suspension or revocation has not already been served upon the person by the enforcement officer as required in [S]ection 302.520.” (Emphasis added). Thus, the statutes provide two distinct and successive ways of providing adequate notice of a suspension or revocation of driving privileges: by the arresting officer or the Director. The notice of suspension or revocation shall clearly specify the reason and statutory grounds for the suspension or revocation, as well as the effective date of the suspension or revocation, and shall also contain information regarding the person’s right to request a hearing. Section 302.515, RSMo 2000. Driver testified he received the notice of his administrative suspension approximately eighteen to twenty months after his arrest in 2007. Driver argues this notice was untimely.1

Section 302.515, RSMo 2000, does not set out a time by which the Director must send out the notice of a suspension or revocation of driving privileges. Similarly, Section 302.510, RSMo Cum.Supp.2007, does not set out a time by which the report must be sent by the arresting officer. See Whitworth v. Director of Revenue, 953 S.W.2d 142, 143 (Mo.App. E.D.1997). In Whitworth, the circuit court set aside a suspension of driving privileges because the arresting officer, at the request of the prosecutor, delayed sending the report to the DOR seventy-six days after the driver’s arrest. Id. at 144. The prosecutor was concerned that an administrative license suspension might preclude criminal proceedings under the rule against double jeopardy and was awaiting a Missouri Supreme Court decision on the issue. Id. On appeal, the court found Section 302.510, RSMo 1994, did not set forth a time by which the report must be sent, and the arresting officer complied with the statute. Id. at 143-44. Therefore, the court reversed the circuit court’s reinstatement of driving privileges. Id. at 144.

To support his arguments, Driver cites language from the Whitworth

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Related

Whitworth v. Director of Revenue State of Missouri
953 S.W.2d 142 (Missouri Court of Appeals, 1997)
Akins v. Director of Revenue
303 S.W.3d 563 (Supreme Court of Missouri, 2010)
Lane v. Director of Revenue
212 S.W.3d 169 (Missouri Court of Appeals, 2007)
Harper v. Director of Revenue
118 S.W.3d 195 (Missouri Court of Appeals, 2003)
Director of Revenue v. Oliphant
938 S.W.2d 345 (Missouri Court of Appeals, 1997)
Jennings v. Director of Revenue
9 S.W.3d 699 (Missouri Court of Appeals, 1999)
Sumpter v. Director of Revenue
88 S.W.3d 491 (Missouri Court of Appeals, 2002)

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Bluebook (online)
354 S.W.3d 215, 2011 Mo. App. LEXIS 1253, 2011 WL 4367337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-v-director-of-revenue-moctapp-2011.