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Peterman v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Third Division

May 21, 2019

MICHELLE PETERMAN, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

          Appeal from the Circuit Court of St. Louis County 18SL-AC08130, Honorable Richard M. Stewart Judge.

          OPINION

          ROBIN RANSOM, J.

         Michelle Peterman ("Peterman") appeals the judgment of the circuit court of St. Louis County sustaining the order of the Director of Revenue for the State of Missouri ("Director") denying her driving privileges for five years and revoking her driving license for one year. We affirm.

         Background

         The Director denied Peterman's driving privileges under Section 302.060.1(10)[1] for a period of five years due to her two convictions on February 15, 2018, for driving while intoxicated ("DWI"). The Director also revoked Peterman's driving privileges for a period of one year under Sections 302.302.1(9) and 302.304.7, after she accumulated twelve points for her second DWI conviction. Peterman filed a Petition for Review in the circuit court under Section 302.311, seeking reinstatement of her driving privileges.

         At the trial de novo on Peterman's Petition, the Director submitted Exhibit A, Peterman's certified Driving Record prepared by the Department of Revenue. The Driving Record listed for the basis of its actions denying and revoking Peterman's driving privileges two DWI convictions in the 21st Circuit Court of St. Louis County dated February 15, 2018: one stemming from a DWI violation on September 24, 2011, and the other from a DWI violation on November 10, 2012. The driving record indicated the Director assessed Peterman 8 points for the first February 15, 2018, conviction resulting from the September 2011 DWI, and it assessed Peterman 12 points for the second February 15, 2018, conviction resulting from the November 2012 DWI. Peterman did not object to the admissibility of Exhibit A, but she argued the driving record was merely a summary of information and was not by itself sufficient to establish she had two DWI convictions. The trial court denied Peterman's request for relief and sustained the Director's five-year denial and one-year revocation of Peterman's driving privileges. This appeal follows.

         Standard of Review

         We will affirm the judgment of the trial court after a bench trial unless it is not supported by substantial evidence, it is against the weight of the evidence, or the court erroneously declared or applied the law. See White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). When, however, a party raises a question of statutory interpretation on appeal, this is an issue of law that we review de novo. See Akins v. Dir. of Revenue, 303 S.W.3d 563, 564 (Mo. banc 2010).

         Point I

         In her first point on appeal, Peterman argues the trial court erred in sustaining the Director's order revoking her driver's license for one year under Section 302.304 because the Director failed to produce sufficient evidence establishing Peterman's underlying DWI convictions, in that the Director failed to produce an original judgment of conviction, as was necessary to meet the Director's burden. We disagree.

         Section 302.304.7 provides that "[t]he director shall revoke the license and driving privilege of any person when the person's driving record shows such person has accumulated twelve points in twelve months." Likewise, the director is tasked with assessing points for various driving violations, in accordance with the statute, and Section 302.302.1(9) provides that the director shall assess 12 points after a conviction "[f]or the second or subsequent conviction of … driving while in an intoxicated condition." Thereafter, any person aggrieved by a decision of the Director may file a petition for a trial de novo before the circuit court. See Section 302.311.

         At a trial de novo challenging a decision by the Director, there is a three-part burden shifting scheme. The driver has the initial burden of showing he or she is entitled to a driver's license; once the driver meets this initial burden, the burden of production switches to the Director to establish by a preponderance of the evidence that the driver is not qualified for driving privileges; and, finally, the burden shifts back to the driver to establish the facts relied on by the director are untrue or legally insufficient. Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 54 (Mo. banc 2001); Schnitzer v. Dir. of Revenue, 297 S.W.3d 604, 607 (Mo. App. E.D. 2009). The Director typically offers the administrative record to meet his burden. See Kinzenbaw, 62 S.W.3d at 54; West v. Dir. of Revenue, 184 S.W.3d 578, 580 (Mo. App. S.D. 2006). Accordingly, here the Director had the burden to establish by a preponderance of the evidence that Peterman had two DWI convictions for which she was assessed 12 points in her driving record. See Sections 302.302.1(9) and 302.304.7.

         At the trial de novo, the Director submitted Peterman's Driving Record as his sole exhibit. Peterman's Driving Record included a section entitled Court Convictions, which listed two convictions: (1) ID#01: a conviction for DWI dated February 15, 2018, in the 21st Circuit Court-Clayton, in St. Louis County, from a violation dated September 24, 2011, in a noncommercial vehicle, for which Peterman was assessed 08 points; and (2) ID#02: a conviction for DWI dated February 15, 2018, in the 21st Circuit Court-Clayton, in St. Louis County, from a violation dated November 10, 2012, in a non-commercial vehicle, for which Peterman was assessed 12 points. Peterman argues that although the Driving Record was admissible, it did not meet the Director's burden of proof, in that it was insufficient to establish the underlying convictions because the Driving Record was not an original judgment of conviction, as required under Section 302.010(3), and because the Driving Record did not demonstrate the points were assessed after Peterman's convictions.

         Section 302.010(3) defines conviction as: "any final conviction; … except that when any conviction as a result of which points are assessed pursuant to section 302.302 is appealed, the term 'conviction' means the original judgment of conviction for the purpose of determining the assessment of points, and the date of final judgment affirming the conviction shall be the date determining the beginning of any license suspension or revocation pursuant to section 302.304." Peterman argues this statute requires the Director to submit an original judgment of conviction to ...


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