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Welch v. Director of Revenue

Court of Appeals of Missouri, Southern District, Second Division

July 31, 2015

ALLAN WILLIAM WELCH, Petitioner-Respondent,
DIRECTOR OF REVENUE, Respondent-Appellant

APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY. Honorable Ewing Mitchell Hough, Circuit Judge.

Attorneys for Appellant Director of Revenue: Chris Koster, Attorney General, and Rachel M. Jones, Special Assistant Attorney General, Jefferson City, MO.

No brief filed by Respondent.



Director of Revenue (" Director" ) appeals from the trial court's judgment reinstating the driving privileges of Allan William Welch. In two separate but related points, Director argues that the trial court erred in reinstating Welch's driving privileges because (1) the trial court failed to evaluate Welch's criminal history and (2) Welch's alleged 2005 chemical refusal revocation made him ineligible for reinstatement. Finding no merit in either of Director's points, we affirm the trial court's judgment.

Factual and Procedural Background

On July 2, 2002, Director suspended the driving privileges of Welch for a ten-year period due to Welch's multiple convictions relating to driving while intoxicated. On March 13, 2013, Welch filed an application for reinstatement of his driving privileges, as provided in section 302.060.1(9),[1] alleging that the ten-year suspension of his driving privileges had expired and he was eligible to apply to have his driving privileges reinstated.

Director moved to dismiss Welch's application, contending that Welch was statutorily ineligible for reinstatement of his driving privileges, in that Welch had an " alcohol-related enforcement contact as defined in section 302.525 during the preceding ten years, to wit: a Chemical Refusal Revocation on August 23, 2005." Attached to the motion to dismiss, Director submitted Exhibit A, which included a " Certification Pursuant to § 302.312, RSMo[,]" certifying that the records constituting Exhibit A " are true and accurate copies of papers, documents, and records lawfully deposited or filed in the offices of the Missouri Department of Revenue[,]" and Welch's Missouri Driver Record, dated March 21, 2013, which revealed a " Chemical Refusal Revocation effective on 9-07-2005[,]" resulting from an offense that occurred on August 23, 2005. This entry also states " Action is Stayed Appealed as of 9-07-2005[.]" In his written response to Director's allegation that Welch had an alcohol-related enforcement contact on August 23, 2005, Welch stated, " said alleged contact has never been adjudicated administratively as to its validity since said action has been stayed."

The parties appeared for hearing and, in addition to Exhibit A, Director offered into evidence Exhibit B, " a new driving record" with the stay removed, along with the oral explanation by Director's counsel that the stay order noted in Exhibit A related to the chemical refusal revocation was a " computer error" and the stay should have been applied to Welch's application for limited driving privileges in another county rather than the chemical refusal action. Both parties conceded that Welch had " not been convicted, pled guilty, or found guilty of and there are no pending charges of any offense related to alcohol[,]" and the point of contention during the hearing was whether Director's evidence established an alcohol-related enforcement contact as defined in section 302.525.

Welch testified that he had not been convicted of any alcohol, controlled substance, or drug-related offenses during the preceding ten-year period; he had been married for three years, had two children, and had attended church for nine years. Welch stated he volunteered his time doing construction work for people in need, helped with vacation bible school, and coached his children in baseball, soccer, and basketball. For the preceding seven years, Welch owned a successful contracting and remodeling business. He also testified that he attended Alcoholics Anonymous, participated in substance-abuse counseling, and sponsors other gentlemen struggling with alcoholism. On cross-examination, Welch testified he was arrested by Joplin Police Department on August 5, 2005, that he refused the chemical test, and he was charged in Jasper County for felony driving while intoxicated. That charge was reduced to a " careless and imprudent driving" misdemeanor. Welch did not recall filing a petition for review on the chemical refusal. At the time of the hearing, Welch did not drive and rode with an employee to and from work.

The trial court concluded that " Welch has not been convicted of any offenses related to alcohol, controlled substances, or drugs, and that his current habits and conduct reveal that he no longer poses [a] threat to the public safety, nor to the citizens of the State of Missouri[,]" and " that Welch has completed all requirements for reinstatement and is now therefore eligible for reinstatement." The trial court admitted both Exhibits A and B into evidence, but expressly found that it " disbelieve[d] the evidence presented by Exhibit B" and " d[id] not find it credible." The trial court further explicitly found that Director's " exhibits lack in credibility to deny Welch's statutory eligibility for reinstatement." Director filed a Motion to Amend the Order asking the court to denominate its order as a judgment. In response, the trial court ordered that its earlier decision be " entered as Final Order and Judgment," thereby ordering that " the Missouri Department of Revenue administer the written and skills driving test to Welch." Director timely appeals.[2]

Standard of Review

On appeal, " 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). " In reviewing a particular issue that is contested, the nature of the appellate court's review is directed by whether the matter contested is a question of fact or law." Id. at 308. " When evidence is contested by disputing a fact in any manner, this [c]ourt defers to the trial court's determination of credibility." Id ...

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