Opinion
No. ED75568.
May 23, 2000.
Appeal from The Circuit Court of St. Louis County, Missouri, Hon. Robert S. Cohen, Judge.
Reversed.
JEREMIAH W. (JAY) NIXON, Attorney General, EVAN J. BUCHHEIM, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for appellant.
EUGENE O. HOWARD, 906 Olive, Penthouse #22, St. Louis, MO 63101, for respondent.
William H. Crandall, Jr., P.J. and Kent E. Karohl, J. (writer) concurring. Mary K. Hoff, J. concurring in result only.
The Director of Revenue ("Director") appeals a judgment granting Catherine M. Jones' ("licensee") petition for limited driving privileges pursuant to section 302.309.3 RSMo Cum. Supp. 1997. We reverse.
All statutory references are to RSMo Cum. Supp. 1997 unless otherwise indicated.
The evidence supports finding the following facts. On May 31, 1993 the Director suspended licensee's driving privileges pursuant to section 302.505 RSMo Cum. Supp. 1992 for driving with an excessive blood-alcohol content at the time of an automobile accident on May 16, 1993. The Director reinstated licensee on August 30, 1993. On March 24, 1995 licensee pleaded guilty to two charges of assault and one charge of vehicular manslaughter arising from the accident. Almost three years after her felony convictions, the Director notified licensee that her driving privileges would be denied for five years, effective April 1, 1998. The notice further informed licensee that she "may be eligible for relicensing" after March 24, 2000, thereby making the disqualification retroactive to the date of conviction.
After receiving the Director's notice, licensee filed a Petition for Review and Limited Driving Privileges pursuant to sections 302.311, 536.110 et seq. and 302.309.3(6)(b). Her petition was submitted on the administrative record, the written submission of the Director and argument by the parties. The circuit court denied her Petition for Review but, thereafter, granted licensee's application for limited driving privileges on November 19, 1998.
In the sole point on appeal, Director argues that the circuit court erred in granting licensee limited driving privileges under section 302.309.3(6)(b) because it lacked jurisdiction where: (1) licensee was convicted of a felony involving the use of a motor vehicle which made her ineligible for a limited driving privilege under section 302.309.3(5)(b); (2) licensee's driving privilege was never revoked and she had not served two years of revocation or disqualification following the manslaughter conviction; and, (3) licensee failed to present evidence to support a finding that she had not been convicted of a drug or alcohol-related offense during the preceding two years and that she was no longer a threat to public safety. We review, in accord withMurphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), an appeal from a circuit court judgment on a petition for review pursuant to section 302.311 RSMo 1994. Silman v. Director of Revenue, 880 S.W.2d 574, 576 (Mo.App.S.D. 1994). We view the evidence in the light most favorable to the judgment entered by the circuit court. Mills v. Director of Revenue, 964 S.W.2d 873, 874 (Mo.App.E.D. 1998).
The issue is whether licensee is statutorily eligible for limited driving privileges pursuant to section 302.309.3(6)(b). If the licensee is statutorily ineligible, then the circuit court has no subject matter jurisdiction to grant such privileges and it must dismiss the petition.Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.App.W.D. 1998);Turpin v. Director of Revenue, 876 S.W.2d 54, 55 (Mo.App.W.D. 1994);Richard v. Director of Revenue, 869 S.W.2d 913, 914 (Mo.App.E.D. 1994).
Director argues that the circuit court lacked subject matter jurisdiction to grant licensee limited driving privileges under section 302.309.3(6)(b) where licensee was convicted of a felony involving the use of a motor vehicle, which made her ineligible for a limited driving privilege under sub-section .3(5)(b). We disagree. The Director is precluded from issuing a driver's license to a person who has been convicted of involuntary manslaughter while operating a motor vehicle in an intoxicated condition for five years from the date of such conviction. Section 302.060(10). However, such a person may apply for limited driving privileges pursuant to section 302.309. The pertinent subdivision states:
Except as provided in subdivision (6) of this subsection, no person is eligible to receive hardship driving privilege whose license has been suspended or revoked for the following reasons:
(b) A conviction of any felony in the commission of which a motor vehicle was used;
(c) Ineligibility for a license because of the provisions of subdivision (1), (2), (4), (5), (6), (7), (8), (9), (10) or (11) of section 302.060[.]
Section 302.309.3(5)(b)-(c) (Emphasis added). When consulting subdivision (6), we find (6)(b) applicable:
A circuit court or director may, in the manner prescribed in this subsection, allow a person who has had such person's license to operate a motor vehicle revoked where that person cannot obtain a new license for a period of five years, as prescribed in subdivision (10) of section 302.060, to apply for limited driving privileges pursuant to this subsection if such person has served at least two years of such disqualification or revocation. Such person shall present evidence satisfactory to the court or the director that such person has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding two years and that the person's habits and conduct show that the person no longer poses a threat to the public safety of this state.
Section 302.309.3(6)(b) (Emphasis added).
The Director argues, as the first element of disqualification, that licensee's conviction for vehicular manslaughter makes her ineligible under section 302.309.3(5)(b) and Hagan v. Director of Revenue, 968 S.W.2d 704 (Mo.banc 1998). Director submits that Hagan held that if a person has a felony conviction involving the use of a motor vehicle, then that person is ineligible for a limited driving privilege under section 302.309.3(5)(b). Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo.banc 1998). Although this submission may be correct, the result is premature until subdivision (6) is applied, which governs applications for limited driving privileges by persons serving both ten-year and five-year denials of driving privileges under sections 302.060(9) and 302.060(10). Section 302.309.3(6)(a) expressly addresses disqualification of persons with ten-year denials under 302.060(9). As amended in 1996, the addition of a "preamble" provides in pertinent part: " [p]rovided that pursuant to the provisions of this section, the applicant is not otherwise ineligible for a limited hardship driving privilege." Sub-section .3(6)(a) (Emphasis added). Sub-section .3(6)(b), which specifically addresses petitions for limited driving privileges by persons with five-year denials under 302.060(10), does not contain a "preamble." Moreover, the court in Hagan construed subdivision .3(6)(a) as amended in 1996 because that licensee was issued a ten-year denial. Id. at 705. Thus, Hagan and its prodigy are not dispositive to our review. See Sanders v. Director of Revenue, 998 S.W.2d 804 (Mo.App.E.D. 1999); see Koppenal v. Director of Revenue, 987 S.W.2d 446 (Mo.App.W.D. 1999).
The 1996 amendment to sub-section .3(6)(a), which added the preamble, was determinative of the Supreme Court's statutory construction and its decision in Hagan. In Hagan, the Supreme Court concluded that, after the 1996 amendment, a person subject to a ten-year denial may be eligible for limited driving privileges, but not if that person is "otherwise ineligible" due to the reasons set forth in section 302.309.3(5), including a felony conviction involving the use of a motor vehicle. Section 302.309.3(5)(b); Hagan, 986 S.W.2d at 707. Here, licensee, who was subject to a five-year license denial pursuant to section 302.060(10), applied for and was granted limited hardship driving privileges under subsection (6)(b) of 302.309.3 rather than subsection (6)(a).
We ascertain legislative intent by giving the words used their plain and ordinary meaning when interpreting a statute or deciding the effect of an amendment to a statute. Mills, 964 S.W.2d at 875. When a statute has clear and unambiguous language, there is no room for construction. Id. The legislature is presumed to understand the state of the law at the time an amendment is enacted. Id. It acts with a purpose and amendments are presumed to have some effect. Id. The language of (6)(b) was not changed by the 1996 amendment, which added the "preamble" language only to subdivision (6)(a). The "otherwise ineligible" limitation of (6)(a) cannot be construed to apply to a wholly separate subdivision that does not contain such language. The plain language of subdivision (6)(b) does not reference the limitations set forth by 302.309.3(5) or otherwise establish a basis of ineligibility independent of subdivision (6)(b). The legislature chose not to insert the same limiting language in (6)(b). Thus, licensee is not statutorily ineligible to receive limited driving privileges solely because of her felony convictions.
The Director argues, as the second element of disqualification, that licensee has not served at least two years of her revocation as set forth by section 302.309.3(6)(b). The relevant language of (6)(b) states:
A circuit court or the director may, in the manner prescribed in this subsection, allow a person who has had such person's license to operate a motor vehicle revoked where that person cannot obtain a new license for a period of five years, as prescribed in subdivision (10) of section 302.060, to apply for limited driving privileges pursuant to this subsection if such person has served at least two years of such disqualification or revocation.
Section 302.309.3(6)(b) (Emphasis added). The evidence supports a finding that licensee was convicted of felonies on March 24, 1995. The Director notified licensee on March 2, 1998 that her driving privileges would be denied stating:
On April 1, 1998, your privilege to drive a motor vehicle in Missouri will be denied for 5 years for being convicted of Vehicular Manslaughter on March 24, 1995 (refer to 302.060, RSMo.).
* * *
You may be eligible for relicensing after March 24, 2000.
(Emphasis added). Subsequently, licensee applied for and was granted limited driving privileges on November 19, 1998. The Judgment and Order Granting Limited Driving Privileges stated "[t]his order is effective this date . . . and shall terminate on 3-24-2000." Thus, the evidence supports a finding that licensee's disqualification was retroactive to the date of her felony convictions. The Director submits that it had authority to "immediately deny Jones's license and was prohibited from issuing a license to her for five years from the date of her conviction." There is no dispute that licensee had a valid driver's license on March 24, 1995 and thereafter she renewed her license without any indication that her privilege to drive was in peril. The Director argues:
The court that convicted Jones in 1995 apparently only informed the Director of this conviction in March 1998. But by then the Director was unable to revoke Jones's license under [sections] 302.302.1 and 302.304 for an accumulation of points resulting from the conviction, because under [section] 302.306, RSMo 1994, those points had been reduced and eventually eliminated by the passage of time since her conviction. Neither did Jones serve two years of disqualification. Jones retained a current and active license following her conviction until the Director took action against it in March 1998.
The Director further argues that "[t]he legislature intended for people convicted of vehicular manslaughter to serve two years without any driving privileges whatsoever, notwithstanding whether the conviction was timely reported to the Director." "Moreover, if the legislature intended that the disqualification period should begin on the date of conviction, it could have easily drafted the statute to so provide." The Director believes "[n]o Missouri court has issued an opinion identifying what constitutes serving two years of the revocation or disqualification as that phrase is used in this statute."
We find no case law interpreting section 302.309.3(6)(b). However, our Supreme Court in Hagan construed 302.309(6)(a). In doing so, it held that "[g]iving the language of sec. 302.309.3(6)(a) its plain and ordinary meaning, an applicant is only eligible for a hardship license if: (1) he was ineligible to obtain an operator's license for ten years pursuant to section 302.060(9); (2) he had served three years of the ineligibility. . ." Hagan, 968 S.W.2d at 706 (Emphasis added). The language of subdivision (6)(b) is almost identical to the language of (6)(a) on the requirement — "if such person has served at least three years of such disqualification or revocation." However, in the case of a person serving a five-year denial under subdivision (6)(b), the time is two years instead of three but the condition for a period of disqualification is the same. Nevertheless, the Hagan court interprets "disqualification or revocation" as "ineligibility." Id. Application of this interpretation to subdivision (6)(b) mandates that a person who has had her license revoked and cannot obtain a new license for a period of five years is eligible for limited driving privileges only after enduring at least two years of the ineligibility to obtain a new license.
In this case, the Director notified licensee that her "privilege to drive a motor vehicle in Missouri will be denied for 5 years for being convicted of Vehicular Manslaughter on March 24, 1995." Licensee was informed that she may be eligible for relicensing on March 24, 2000. Therefore, licensee's period of ineligibility began on March 24, 1995 and will end on March 22, 2000 because, although notified in March 1998, the Director made ineligibility retroactive to the date of her convictions. On November 18, 1998 when the circuit court granted licensee limited driving privileges, she had already endured approximately three and three-quarters years of a five-year ineligibility. This is true even though licensee may have driven after March 24, 1995 and prior to notice of revocation. The circuit court did not err in granting limited driving privileges on this basis.
The Director also argues that licensee "presented no evidence that she had not been convicted of an alcohol- or drug-related offense during the preceding two years and that she was no longer a threat to the public safety." Section 302.309.3(6)(b) provides in relevant part:
Such person shall present evidence satisfactory to the court or the director that such person has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding two years and that the person's habits and conduct show that the person no longer poses a threat to the public safety of this state.
Section 302.309.3(6)(b) (Emphasis added). Licensee responds that the case was submitted to the circuit court on the pleadings, the administrative record, the written submission of the Director and arguments by the parties. In fact, the Directors' Objection To Issuance Of Hardship Driving Privilege/Motion To Dismiss included "Exhibit A," which was an Affidavit by the custodian of records for the Missouri Department of Revenue, DWI Division. The custodian certified copies of the administrative record of the Director's decision in licensee's case, including copies of her driving record. Licensee argues that her driving record "established that [she] had not been convicted of any alcohol or drug-related driving offenses during the two years preceding her application for limited driving privileges." (Emphasis added). It is undisputed that no additional evidence was produced by either party.
The language of subdivision (6)(b) imposes a burden on the licensee to present evidence to support a finding that: (1) she has not been convicted of any drug or alcohol related offense in the preceding two years; and, (2) her habits and conduct show that she no longer poses a threat to the public safety of this state. The entire evidence before the circuit court consisted of the pleadings, licensee's driving record, the director's notice letter of a five-year disqualification and her 1995 record of convictions. Licensee's driving record indicated no alcohol or drug-related driving convictions subsequent to the 1993 accident. However, there was no evidence to support a finding that she had no non-driving convictions related to alcohol or drugs. The statutory language is not restricted to conviction of any drug or alcohol related driving offense in the preceding two years. Subdivision (6)(b) requires evidence to support a finding that not only has she had no alcohol or drug-related driving convictions in the preceding two years, but also that she has had no convictions "of any offense related to alcohol, controlled substances or drugs within the preceding two years[.]" Moreover, there must be evidence to support a finding that licensee's habits and conduct show that she is no longer a threat to the public safety of this state. The record before the circuit court contains no evidence to support finding the absence of all possible convictions and licensee's habits and conduct no longer pose a threat to public safety. Thus, the judgment of the circuit court is against the weight of the evidence and cannot stand.