SUPREME COURT OF MISSOURI en banc
MATTHEW CARVALHO, ) Opinion issued March 19, 2019, and modified ) on the Court's own motion April 30, 2019 Appellant, ) ) vs. ) No. SC97394 ) DIRECTOR OF REVENUE, ) ) Respondent. )
Appeal from the Circuit Court of Franklin County Honorable Stanley Williams, Judge
Matthew Carvalho appeals the suspension of his driver’s license for driving while
intoxicated. He argues the circuit court erred in admitting the report showing his blood
alcohol content (BAC) was .087 percent, over the legal limit, because the director of
revenue did not present evidence showing the report was timely filed with the department
of health and senior services (DHSS). He also alleges the implied consent notice failed to
comply with due process because it misled him in stating his license would be suspended
immediately if he refused the breath test and in failing to tell him the consequences of
taking the breath test. Finally, he alleges a later notice of suspension given him after he
failed the breath test did not adequately inform him what the director of revenue would have to prove to suspend his license.
This Court affirms. The filing of the report with DHSS is a collateral requirement
that does not affect the performance of the test or its validity or accuracy, and, so, a
failure to timely make that filing does not preclude admission of the report. Further, the
implied consent notice was accurate in telling Mr. Carvalho his license would be
suspended immediately should he refuse the breath test. The fact he would then be given
a 15-day permit did not change that fact. Nothing in Missouri law or in the due process
clause required the officer to tell Mr. Carvalho the consequences of taking the breath test,
to which he had already had consented by driving on Missouri’s roads. It was only as to
the consequences of withdrawing that consent that he required notice. Finally, the notice
of suspension accurately told Mr. Carvalho the facts required by statute to suspend his
license and how to request a hearing. Due process did not require the officer to explain
the law regarding the burden of proof the director would bear at that hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
An officer from the Washington, Missouri, police department stopped Mr.
Carvalho on May 10, 2017, for speeding. Mr. Carvalho had crutches in the car and stated
he had been at a hospital due to a foot injury. The officer’s report states he suspected Mr.
Carvalho was driving while intoxicated based on his “very strong odor of intoxicants”
and “watery, bloodshot, and glassy” eyes. Mr. Carvalho said he had not been drinking
but declined to allow the officer to perform a horizontal eye nystagmus test, stating, “I
ain’t doing that, you can talk to my lawyer.” In the incident report, the officer noted Mr.
Carvalho slurred his words when he spoke. The officer asked Mr. Carvalho to exit the
2 vehicle, which he did with the assistance of his crutches. The officer asked Mr. Carvalho
to provide a sample of his breath and advised him of Missouri’s implied consent law.
When Mr. Carvalho refused, the officer arrested him for speeding and driving while
intoxicated and transported him to the Washington police station.
At the police station, the officer asked Mr. Carvalho to provide a breath sample
and read him what is commonly referred to as “the implied consent warning” contained
in the Missouri department of revenue alcohol influence report:
You are under arrest. I had reasonable grounds to believe you were driving a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or drug content in your blood, I’m requesting you to submit to a chemical test of your breath. If you refuse to take the test, your driver’s license will immediately be revoked for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?
Mr. Carvalho asked to speak with an attorney. After doing so, Mr. Carvalho
agreed to take the breath test. It showed Mr. Carvalho had a BAC of .087 percent. When
a breath test shows a BAC above .08 percent, the officer:
2. … shall take possession of any driver’s license issued by this state which is held by the person [and] … shall issue a temporary permit which is valid for fifteen days after its date of issuance and shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540. … The notice shall also contain a detachable form permitting the arrested person to request a hearing.
§ 302.520.1, .2. 1
As required by this statute, the officer took possession of Mr. Carvalho’s license
3 and provided him with a 15-day temporary permit with notice that his “driving privilege
will be suspended or revoked 15 days from the date of this notice if you do not request a
hearing” and with a form explaining how to request a hearing. As required by section
302.510, the officer prepared and forwarded a report to the department of revenue.
Mr. Carvalho does not contest these procedures were followed.
Based on the officer’s report, the department determined Mr. Carvalho was
arrested upon probable cause to believe he was driving a motor vehicle with a BAC
above .08, and suspended his license. 2 Section 302.505.2 provides this determination
“shall be final unless a hearing is requested and held. If a hearing is held, the department
shall review the matter and make a final determination on the basis of evidence received
at the hearing.” Mr. Carvalho timely requested a hearing. § 302.530. The hearing
officer sustained the suspension. Mr. Carvalho then timely filed a petition for trial de
novo. § 302.535.
Section 302.312 provides, “Copies of all records lawfully filed in the offices of the
department of revenue or the bureau of vital records of the department of health and
senior services and copies of any records, properly certified by the appropriate custodian
or the director,” are admissible as evidence. Accordingly, the department submitted as
exhibit A at the trial de novo a certified copy of the formal notice of suspension, as well
1 All statutory references are to RSMo Supp. 2017, unless otherwise noted. 2 Under section 302.525.2, the license will be suspended not revoked when, as here, the person’s license has not been suspended within the previous five years for an alcohol related offense.
4 as the alcohol influence report, blood alcohol test report, uniform citation, DHSS “Intox
EC/IRII Maintenance Report,” incident report, arrest report, misdemeanor probable cause
statement, and Mr. Carvalho’s driving record. The department did not present any live
testimony.
Mr. Carvalho objected to the admission of the portion of exhibit A containing his
.087 BAC test results because he alleged admission would violate Missouri regulations
and his due process rights:
Your Honor, my only objection to Exhibit A would be any introduction of the alleged BAC result as they are found in that exhibit. Specifically, my objection would be that my client -- there was no probable cause for the arrest. My client’s due process rights were violated in obtaining the breath result, and also the foundational requirements in 19 CSR 25-30.0313 were not satisfied.
Consistent with what he told the officer at the scene, Mr. Carvalho testified in his
defense that he did not drink at all on the day of his arrest and had recently left the
hospital after injuring his foot just prior to the time he was pulled over. Although he
spoke with a lawyer after receiving the warning, he said he took the breath test based on
use of the word “immediately” in the warning because he thought this meant if he did not
take the test he would be prohibited from driving for the remainder of the year to work
and to school and was concerned he would lose his job. He testified he did not realize he
would get a temporary permit.
The circuit court sustained the suspension of Mr. Carvalho’s driving privilege.
Mr. Carvalho’s timely appeal was transferred to this Court because Mr. Carvalho
challenges the validity of sections 577.041, 302.505, and 302.574. See Missouri Const.
5 art. V, sec. 3.
II. STANDARD OF REVIEW
In this court-tried case involving a license revocation, “the trial court’s judgment
will be affirmed 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.” White v. Dir. of
Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “When facts are not contested and
the issue is one of law our review is de novo, and no deference is given to the trial court’s
determination.” Stiers v. Director of Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016)
(Quotation omitted). The Court reviews the constitutional validity of a statute de novo.
Hink v. Helfrich, 545 S.W.3d 335, 338 (Mo. banc 2018).
III. STATUTORY AND REGULATORY FOUNDATIONAL REQUIREMENTS WERE MET FOR ADMISSION OF THE BREATH TEST RESULTS
Mr. Carvalho contends the breath test results were inadmissible because the
director failed to demonstrate compliance with 19 CSR § 25-30.031(3), which provides
that a copy of maintenance reports on breathalyzers must be filed with DHSS within 15
days. In considering this argument, it is helpful to review what must be shown to revoke
or suspend a person’s license for an excessive BAC.
The department of revenue is required to suspend or revoke an adult driver’s
license “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 eight-hundredths of one percent or more by weight of alcohol in his
blood.…” § 302.505.1. At any trial de novo, the director also must present evidence
6 showing probable cause for the arrest and that the driver’s blood alcohol level exceeded
the legal limit. Vanderpool v. Director of Revenue, 226 S.W.3d 108, 109 (Mo. banc
2007). The director has the burden of proof and the burden of persuasion. White, 321
S.W.3d at 305.
Section 577.020(3) provides, “To be considered valid, chemical analysis of the
person’s breath, blood, saliva, or urine shall be performed, according to methods
approved by the state department of health and senior services.” (Emphasis added). It
requires DHSS approve techniques and establish standards for conducting these tests:
4. The state department of health and senior services shall approve satisfactory techniques, devices, equipment, or methods to be used in the chemical test pursuant to the provisions of sections 577.019 to 577.041. The department shall also establish standards to ascertain the qualifications and competence of individuals to conduct such analyses and issue permits which shall be subject to termination or revocation by the state department of health and senior services.
§ 577.020(4). “To establish a prima facie foundation for the admission into evidence of
the results of a breathalyzer test … the test must be performed: (1) by following the
approved techniques and methods of the Division of Health; (2) by an operator holding a
valid permit; (3) on equipment and devices approved by the division.” Stuhr v. Director
of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989). This means when there are
“regulations concerning the proper methods of conducting blood alcohol tests as
authorized by Chapter 577 … the state must demonstrate absolute and literal compliance
with these regulations prerequisite to introducing the test results into evidence.” State v.
Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991) (emphasis added).
But here, Mr. Carvalho does not dispute that the director adduced evidence of all
7 three foundational requirements to show the test was performed in compliance with
DHSS regulations. The officer conducted the test on equipment approved by DHSS, and
no party disputes a maintenance check had been conducted within 35 days on that
machine. The officer held a valid permit from DHSS to use that equipment and
conducted the test according to the procedures and techniques prescribed by DHSS.
Mr. Carvalho nonetheless argues the breath test should have been excluded
because the director failed to prove compliance with another section of the regulations
providing, “The permittee shall retain the original report of the maintenance check and
submit a copy of the report so that it shall be received by [DHSS] within fifteen (15) days
from the date the maintenance check was performed.” 19 CSR § 25-30.031(3).
Mr. Carvalho contends the director failed to present evidence the maintenance-check
report for the breath analyzer had been submitted to DHSS within 15 days following the
last maintenance check conducted on the machine.
Mr. Carvalho’s complaint is with a record-keeping regulation requiring a copy of
maintenance reports be submitted to DHS within a 15-day period after the test was
conducted. He does not claim this failure affected the validity, performance, or accuracy
of the test. He simply says it is, in effect, a foundational box the department did not
check and, so, makes the test inadmissible.
But neither the relevant statutes nor the cited regulations make admissibility of the
breath test result dependent on whether collateral record-keeping requirements were met.
As noted earlier, section 302.312 states records properly deposited with the department of
revenue shall be admissible. There is no question the report properly was deposited with
8 the department of revenue. Further, section 577.020(3) provides “To be considered valid,
chemical analysis of the person’s breath, blood, saliva, or urine shall be performed,
according to methods approved by the state department of health and senior services ....”
Mr. Carvalho does not contend the blood test was not performed according to approved
methods. Finally, section 577.020(4) provides that the department shall establish
techniques and establish standards for performing tests. Once again, there is no
suggestion the test was not performed in accordance with these techniques and standards.
Indeed, although this is this Court’s first opportunity to address this issue,
Mr. Carvalho’s argument has been rejected repeatedly by the court of appeals. Turcotte
v. State, 829 S.W.2d 494, 496 (Mo. App. 1992), held a breath test was admissible
although the maintenance report was not sent to DHSS at all because the “failure to file
timely maintenance reports does not impeach the machine’s accuracy, which is the main
concern here.” Both Hearne v. v. Director of Revenue, 559 S.W.3d 66, 69 (Mo. App.
2018), and Roam v. Director of Revenue, 559 S.W.3d 1, 4 (Mo. App. 2018), found the
failure to file the maintenance report within 15 days should not have rendered the drivers’
tests inadmissible as that failure did not impeach the tests’ accuracy, citing Turcotte.
Accord Potts v. State, 22 S.W.3d 226, 230 (Mo. App. 2000) (breath test admissible when
the permittee accidentally kept the copy of the maintenance check and sent the original to
DHSS, as this minor record-keeping error did not affect the test’s validity or
performance).
By contrast, when regulatory matters affect the actual performance of maintenance
tests of breathalyzers, strict compliance is required. Woodall v. Director of Revenue, 795
9 S.W.2d 420, 420 (Mo. App. 1990), held the statutory foundation for the admission of a
BAC test was not satisfied because the State admitted that no maintenance check took
place within 35 days prior to the test, as this could have affected the validity of the test
result. See also Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992)
(finding evidence of compliance with 19 CSR § 25-30.031’s requirement of regular
maintenance checks is required because it bears directly on “proper functioning and
operation of the machine when a blood alcohol analysis is conducted” and is intended “to
ensure the reliability of a particular test result.”). 3
This holding does not undercut the importance of the recordkeeping requirements
set out in the regulations issued under chapter 302. It simply recognizes the purpose of
the regulation at issue is aimed at the internal recordkeeping needs of DHSS and allows
DHSS to verify compliance among permittees. There may well be cases in which, for
instance, the identity of a test result is at issue and compliance with this regulatory
requirement can assist the court or administrative body in determining whether the proper
test result is being considered. Further, records properly deposited with DHSS are
admissible in courts and in administrative proceedings if certified by a proper custodian
3 Mr. Carvalho suggests White, 321 S.W.3d at 307, effectively overruled Turcotte and its progeny. While he is correct White clarified the burden of production is on the director, neither Turcotte nor Potts was based on an incorrect placement of the burden of production. They turned on the fact the failure to comply with a collateral record-keeping requirement did not affect the validity of the test. Roam and Hearne were decided after White and are consistent with it. In fact, Roam rejected this very argument, stating White does not discuss “compliance with a regulation that does not impact the validity of the test as a foundational prerequisite to the admission of breath test results.” 559 S.W.3d at 4 fn. 1. This Court agrees. 10 just as are records filed with the department of revenue, an obvious regulatory advantage.
§ 302.312. But the regulation plays no role in determining the admissibility of the report
in the absence of a claim it is relevant to the test’s accuracy or performance. No such
claim is made here. 4
IV. MR. CARVALHO’S PROCEDURAL DUE PROCESS RIGHTS WERE NOT VIOLATED
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.
319, 332 (1976). Driver’s licenses are property interests protected by procedural due
process and “are not to be taken away without that procedural due process required by the
Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112 (1977) (Quotations omitted).
Mr. Carvalho does not make a due process challenge to the initial suspension of his
license or deny he received a meaningful hearing. Instead, Mr. Carvalho argues he was
provided constitutionally deficient notice of that hearing.
4 The parties dispute whether the circuit court judgment addressed whether the document was timely sent to DHSS even though the court’s order specifically states: “Petitioner first argues that Respondent failed to establish that maintenance reports for the subject breathalyzer were filed within 15 days of April 30, 2017. Petitioner’s argument is contrary to the records contained in Respondent's Exhibit A and the applicable law.” (Emphasis added). The report contained in exhibit A was stamped as received the day after the test was conducted by a named person who the official state manual lists as a current employee of DHSS. But, as the state manual was not before the circuit court, the parties dispute whether this Court can judicially notice it on appeal. Because the report was admissible regardless of whether it was timely filed with DHSS, the Court does not reach this issue.
11 Procedural due process permits deprivation of a property interest by the
government only upon notice and an opportunity for a hearing. Moore v. Board of Educ.,
836 S.W.2d 943, 948 (Mo. banc 1992). This does not require the same type of process in
every instance; rather, “due process is flexible and calls for such procedural protections
as the particular situation demands.” Jamison v. State Department of Social Services, 218
S.W.3d 399, 406 (Mo. banc 2007), quoting, Morrissey v. Brewer, 408 U.S. 471, 481
(1972). Due process requires “notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections.” Stough v. Bregg, 506 S.W.3d 400, 404 (Mo. App. 2016),
quoting, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Mr. Carvalho challenges the sufficiency of two notices. First, he argues the
implied consent warning given him by the officer when he was first stopped failed to
meet the standard this Court set out in Teson v. Director of Revenue, 937 S.W.2d 195, 197
(Mo. banc 1996). Teson held an implied consent warning fails to satisfy due process if
the words used “either (1) fail to inform the arrestee of all of the consequences of refusal
or (2) mislead the arrestee into believing that the consequences of refusal are different
than the law actually provides.” Id. at 197.
Mr. Carvalho concedes the officer read him the notice required by section 577.041
as to the consequences of refusing to take the breath test: “If you refuse to take the test,
your driver’s license will immediately be revoked for one year.” He does not allege this
notice failed to inform him of the consequence of refusal that his license would be
immediately suspended or misled him into believing that consequence would not occur.
12 Rather, he alleges the notice the statute requires the officer to give him is “misleading”
because the suspension of his license does not occur immediately and, therefore, the
notice is inaccurate.
Contrary to Mr. Carvalho’s argument, section 302.574.1 provides, when a driver
refuses to submit to a breath test, “the officer … shall take possession of any license to
operate a vehicle issued by this state which is held by that person.” In other words, the
driver immediately loses his license. Mr. Carvalho actually objects to the fact the statute
does not also require the officer to inform him that, once his license was suspended, he
would get a 15-day permit even if he refused the test. While he argues this makes the
suspension not “immediate,” he is simply incorrect. The suspension of his license is
immediate. What is not immediate is a complete prohibition on his ability to legally
drive. But due process “does not require notice that some particular step must be taken or
that certain procedure be followed; the opportunity afforded is to make a choice of
whether to ‘appear or default, acquiesce or contest.’” State v. Goodbar, 297 S.W.2d 525,
528 (Mo. 1957), quoting, Mullane, 339 U.S. at 314.
Teson is not to the contrary. In Teson, the officer inadvertently left out the word
“immediate” when giving Teson the implied consent warning—that is to say, the officer
left out the very word argued here to be misleading. The defendant there made the
entirely opposite argument from that now urged by Mr. Carvalho: he claimed, because he
was not read the word “immediately,” or a synonym, he was uninformed and uncertain
about whether to refuse the test, for he did not know his license could be immediately
suspended. Id. at 197. The Court rejected this argument not because it found the
13 suspension would not be immediate—indeed, that was the position taken by the separate
opinion of Judge Limbaugh, a view the Court did not adopt. Id. at 199. Rather, the
Court upheld the suspension because it found the immediacy of the suspension is implicit
in the other words forming the warning even without the use of the word “immediately,”
as the remaining language makes it clear refusal to submit to the test “guarantee[s] a
certain loss of the driving privilege.” Id. at 198.
This Court reaffirms the result in Teson. The officer takes physical possession of
the driver’s license, and the driver is given a permit good for only 15 days. § 302.574.1.
This temporary permit is not a license. A court may subsequently stay this revocation,
but until and unless the court acts, the revocation already has taken effect. § 302.574.3-5.
This immediate suspension when the test is refused contrasts with the provisions
governing when a driver takes the breath test but is shown to be over the legal limit. In
the latter circumstance, section 302.525.1 provides the actual suspension or revocation
itself does not become effective until 15days after the driver has received notice. The
implied consent warning did not mislead Mr. Carvalho as to the consequences of his
refusal of the test.
Mr. Carvalho alternatively argues, even if the implied consent warning adequately
told him the consequences of refusing the breath test, it did not tell him the consequences
of consenting to the breath test – that his license could be suspended if the test shows a
BAC exceeding .08 percent. He says by warning him of the immediate loss of his license
if he refuses the test but not warning him of the consequences of taking the test, the
warning “implies that providing a sample is a consequence-free act.”
14 Before being asked to take the breath test in Missouri, every driver is told the
reason for the test, to wit, the officer “had reasonable grounds to believe you were driving
a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or
drug content in your blood, I’m requesting you to submit to a chemical test of your
breath.” This language notifies every driver, including Mr. Carvalho, the purpose of the
testing is to confirm or negate the officer’s belief the driver is intoxicated. Mr. Carvalho
also was given Miranda warnings after his arrest which informed him he may speak with
an attorney, and he did so before deciding whether to take the test. “It strains credulity to
suggest that a person arrested for [drunken driving] will not know that if he submits to a
chemical test the results may be used against him at trial.” State v. Knous, 313 N.W.2d
510, 512 (Iowa 1981). While the record does not reveal why Mr. Carvalho chose to take
the test, nothing in the record supports any cause for confusion as to the consequence of
testing above the legal limit.
Even more basically, however, Mr. Carvalho’s argument ignores that the purpose
of the implied consent warning is not to obtain a driver’s consent to a breath test. A
driver already gave that consent as soon as he took the wheel in Missouri, for by driving
on Missouri's public roads a person impliedly consents to tests of the person's breath,
blood, saliva or urine for the purpose of determining the alcohol or drug content of the
person's blood, if the police officer has reasonable grounds to believe the driver is
intoxicated. § 577.020.1; Brown v. Dir. of Revenue, 34 S.W.3d 166, 171 (Mo. App.
2000). The purpose of the warning is only to inform drivers such as Mr. Carvalho they
can withdraw that implied consent and refuse to submit to any chemical tests but, if they
15 so choose, there will be consequences. See Kimbrell v. Director of Revenue, 192 S.W.3d
712, 716 (Mo. App. 2006) (“Giving the driver the option to refuse to consent with the
consequence of an automatic one year revocation of his or her driver’s license balances
the right to privacy against the public’s interest in controlling the menace of drunken
driving”) (Internal quotations omitted). Its purpose is not to remind Mr. Carvalho of the
consequences of a consent he already gave when he drove his first mile on Missouri’s
highways. Due process does not require such a reminder.
Mr. Carvalho finally argues he was misled by the written notice the officer gave
him after he took but failed the breath test. The notice was entitled “Notice of
Suspension or Revocation of Your Driving Privilege” and stated:
You have been stopped and/or arrested upon probable cause that you were driving a vehicle while your blood alcohol level was over the legal limit. Your driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing.
Mr. Carvalho notes section 302.505 requires more than probable cause to arrest in order
for the director to administratively suspend his license. The director also must present
evidence the person actually was driving the vehicle and that the driver’s BAC content
was actually above .08. He says because the notice did not inform him of the elements
the director must find to support his suspension, it was misleading and insufficient.
Mr. Carvalho misapprehends the purpose of the notice. It accurately told him that
if he did not request a hearing, his license would be suspended or revoked in 15 days. It
did not purport to also tell him what the director would be required to prove if
Mr. Carvalho did request a hearing, and he cites no authority requiring it to do so. Other
16 parts of the notice notified Mr. Carvalho how to request an in-person hearing and
contained instructions for contacting the department of revenue.
This was adequate. While a notice cannot mislead, parties are “held to a
knowledge of the law.” See Bishop v. Board of Ed. of Francis Howell Sch. Dist., St.
Charles, 575 S.W.2d 827, 829 (Mo. App. 1987). Notice required by the Due Process
Clause simply must “ensure that the opportunity for a hearing is meaningful,” so that
once informed of an administrative action, the person “can turn to public sources to learn
about the remedial procedures available to him.” Sneil, LLC v. Tybe Learning Center,
Inc., 370 S.W.3d 562, 572 (Mo. banc 2012), quoting, City of West Covina v. Perkins, 525
U.S. 234, 240-41 (1999) (discussing property seizure notice). As noted in rejecting Mr.
Carvalho’s other due process claim, due process “does not require notice that some
particular step must be taken or that certain procedure be followed; the opportunity
afforded is to make a choice of whether to ‘appear or default, acquiesce or contest.’”
Stough, 506 S.W.3d at 404, quoting, Mullane, 339 U.S. at 314. The director had no
obligation to act as counsel to the driver and inform him about the standards and burdens
of proof that would apply at a hearing should he request one. 5
5 Mr. Carvalho also argues the notice of suspension is misleading when it states being “stopped upon probable cause” is a basis for suspension or revocation because unless one is under age 21, the suspension can follow only an arrest, not a mere stop under section 302.505. This Court does not address this question as Mr. Carvalho was arrested and was over 21. “[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” State v. Ellis, 853 S.W.2d 440, 446 (Mo. App. 1993), quoting, United States v. Raines, 362 U.S. 17, 21 (1960). 17 IV. CONCLUSION
For the reasons stated above, this Court affirms.
_________________________________ LAURA DENVIR STITH, JUDGE
All concur.