Meyer v. Director of Revenue

909 S.W.2d 397, 1995 Mo. App. LEXIS 1850, 1995 WL 672513
CourtMissouri Court of Appeals
DecidedNovember 14, 1995
DocketNo. WD 50677
StatusPublished
Cited by2 cases

This text of 909 S.W.2d 397 (Meyer 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
Meyer v. Director of Revenue, 909 S.W.2d 397, 1995 Mo. App. LEXIS 1850, 1995 WL 672513 (Mo. Ct. App. 1995).

Opinion

ELLIS, Judge.

Thomas Eugene Meyer appeals the order of the Jackson County Circuit Court sustaining a 90-day suspension of his driving privilege by the Director of Revenue (“Director”). The judgment is reversed.

On or about October 28, 1994, Meyer received notice from the Director that his driver’s license (a commercial driver’s license) would be suspended as a result of excessive point accumulation pursuant to §§ 302.302 and 302.304.1 The Director had assessed Meyer three points for speeding in Nevada on June 21, 1993, two points for speeding in Arkansas on April 13, 1994, and three points for speeding in Mississippi on October 19, 1994. Consequently, he had received eight points within an eighteen month period, making his license subject to suspension under § 302.304.2. Meyer timely filed his appeal of the suspension in the Jackson County Circuit Court pursuant to § 302.311.

The case was submitted to the court on January 27, 1995. Neither party submitted testimonial evidence. Meyer presented to the court what he designated a “Motion in Limine” objecting to the Director’s submission of Exhibit A, which consisted of an affidavit with records regarding Meyer’s out-of-state speeding convictions. The trial court denied the motion and admitted the records. After reviewing the records and statements of counsel, the trial court affirmed the sus[399]*399pension of Meyer’s driver’s license. Meyer appeals this judgment.

In his first point on appeal, Meyer contends the trial court erred in relying on the records of his out-of-state speeding violations because they do not fall under the business records exception to hearsay. He claims the affidavit contained documentation not regularly maintained by the Director in the regular course of business because it contained records of foreign jurisdictions and an affidavit of explanation.

The exhibit about which Meyer complains consisted of Meyer’s driving record, copies of the tickets he received in Mississippi and Arkansas showing conviction or guilty plea entries and dates, and a copy of a computer printout of Meyer’s driving record in Nevada. The exhibit also contained two affidavits. The first affidavit (which was the first page of the exhibit), was a notarized affidavit of Daphne Koepp, the records custodian for the Missouri Department of Revenue, Drivers License Bureau. The second affidavit, made by Robert Ordway, the Operations Manager of the Missouri Department of Revenue, Drivers License Bureau, explained the Nevada computer printout.

Koepp’s affidavit stated the attached records were kept by the Department in the regular course of business. Its form and content is identical to the language set forth in § 490.692. The affidavit also contained a certification of the attached records pursuant to § 802.312. If it were not for the Nevada computer printout and the second affidavit, which purports to explain it, Meyer’s point would be totally devoid of merit. In Schrimpf v. Director of Revenue, 889 S.W.2d 171, 172-73 (Mo.App.1994), the Director offered an exhibit consisting of Schrimpf s driving record and copies of two out-of-state traffic convictions which had been sent to the Missouri Department of Revenue. These out-of-state records were similar to the Mississippi and Arkansas records in the case at bar. Also, notarized affidavits of the Department’s records custodian, similar to Koepp’s affidavit in the ease at bar, were attached to the exhibit. We held in Schrimpf that because the records custodian’s affidavit, which contained language tracking § 490.692, was attached to the records, they were properly admitted as business records. Thus, Schrimpf is dispositive unless the Nevada computer printout and the Ordway affidavit do not constitute business records under the provisions of The Uniform Business Records as Evidence Law, § 490.660, et seq.

Since we have already held, in Schrimpf, that copies of out-of-state convictions received by the Director qualify as business records under § 490.680, it seems to logically follow that the computer printout of the Nevada information is also a business record for purposes of § 490.680. However, the Ord-way affidavit, on the other hand, appears to be testimonial in nature. It does not recite that it is prepared in the regular course of business or, if so, for what purpose, but to the contrary, declares that the “electronic conviction report ... is maintained ... in the regular course of business ...,” thereby suggesting that the affidavit itself is not prepared or maintained in the regular course of business. Nevertheless, we need not decide the issue because, even if we assume arguen-do, that all of Exhibit A, including the Ord-way affidavit, was properly admitted, we find the trial court’s judgment must be reversed because there was insufficient evidence to sustain the suspension.

In his second point, Meyer contends there was insufficient competent evidence at trial regarding the appropriate number of points to be assessed for each of the out-of-state convictions (particularly the Nevada and Arkansas convictions) and therefore the Director failed to prove his suspension was proper. In considering this point, we are mindful that our standard of review for this court tried case prescribes that the judgment be affirmed unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the court erroneously declared or misapplied the law. Kimber v. Director of Revenue, 817 S.W.2d 627, 629 (Mo.App.1991).

Section 302.160 provides:

When the director of revenue receives notice of a conviction in another state ... which, if committed in this state, would result in the assessment of points, he is [400]*400authorized to assess the points and suspend or revoke the operating privilege when the accumulated points so require as provided in Section 302.304.

Under § 302.304.2, the Director shall suspend the driver’s license of any person who has accumulated eight points in eighteen months. Speeding in violation of state law is to be assessed 3 points, whereas speeding in violation of county or municipal ordinance is to be assessed 2 points. § 302.302.1. Finally, § 304.009 provides an exemption to the imposition of points under § 302.302. Schrimpf, 889 S.W.2d at 174. Under § 304.009 2 (read with § 304.0103), except for trucks weighing more than twenty-four thousand pounds, no points may be assessed for speeding convictions on certain highways between 55 and 70 m.p.h. Schrimpf, 889 S.W.2d at 174; Knierim v. James, 677 S.W.2d 322, 324 (Mo. banc 1984). This is true even where a municipal ordinance has duplicated the state speed limits provided under § 304.010. Knierim, 677 S.W.2d at 325.

Meyer received three points for his Nevada conviction and two points for his Arkansas conviction. Meyer contends the records submitted by the Director do not establish that the proper amount of points were assessed for those convictions. He also asserts that the evidence is insufficient to establish that the § 304.009 exemption does not apply.

In Schrimpf, Judge Hanna, writing for this court, stated:

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Related

Matthews v. Director of Revenue
72 S.W.3d 175 (Missouri Court of Appeals, 2002)
State v. Hammons
964 S.W.2d 509 (Missouri Court of Appeals, 1998)

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Bluebook (online)
909 S.W.2d 397, 1995 Mo. App. LEXIS 1850, 1995 WL 672513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-director-of-revenue-moctapp-1995.