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Lane v. Director of Revenue7/13/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis, John W. Grimm
Opinion Vote: REVERSED AND REMANDED. Dowd, C.J. and Pudlowski, J., concur.
The Director of Revenue (Director) appeals the judgment of the trial court reinstating driving privileges of James Lane (Driver). We reverse.
On January 20, 1998, Director sent notice to Driver that his driving privileges were being denied for ten years pursuant to section 302.060, RSMo Cum. Supp. 1998, for being convicted more than twice for driving while intoxicated (DWI). Director referred to three prior convictions occurring on September 14, 1977, August 22, 1983, and January 5, 1998. Section 302.311, RSMo 1994. Driver timely appealed the decision to the circuit court by filing a petition for review authorized by section 302.311, RSMo 1994. In his petition, Driver alleged that one or more of the DWI convictions was not valid.
On March 17, 1998, Director filed an answer, denying most of Driver's allegations. Director affirmatively pleaded that Driver had more than two DWI convictions. Director attached a copy of the Department's records, certified by the custodian of records "pursuant to section 302.312, RSMo, that the records attached hereto are exact duplicates of the original records lawfully filed or deposited with the Department of Revenue . . . ." The records included a copy of Driver's "Missouri Driver Record", copies of the uniform traffic tickets issued in the three DWI cases, as well as his records of conviction for those cases. The driving record and tickets indicate that Driver has three prior DWI convictions: (1) 9/14/77 in Stoddard County; (2) 8/22/83 in St. Louis City; and (3) 1/5/98 in Cape Girardeau County.
A de novo hearing was held on Driver's petition on July 24, 1998. Driver and his counsel appeared. Director failed to appear for the hearing. Driver testified that when he pleaded guilty on 9/14/77 in Stoddard County to DWI, he was not represented by counsel and did not waive his right to counsel. The trial court found that "petitioner was not represented by counsel, and did not waive his right to counsel as it pertains to the conviction for driving while intoxicated received on September 14, 1977." It entered judgment setting aside Director's ten-year denial of Driver's driving privileges. Director appeals.
Our review of this appeal is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) and we will uphold the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Appleby v. Director of Revenue, 851 S.W.2d 540, 542 (Mo. App. 1993).
On appeal, Director argues the trial court erred in setting aside the ten-year denial because Driver has been convicted three times for violating state law relating to DWI. Director contends that under section 302.060(9), no proof is required that Driver was either represented by counsel or waived his right to counsel in cases arising from violations of state law.
Section 302.060(9) provides:
The director shall not issue any license and shall immediately deny any driving privilege: "....(9) To any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the Judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated."
The Department of Revenue records show that Driver's DWI convictions were all for violations of state law. For DWI
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