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Justis v. Wilson5/31/2000
Appeal From: Circuit Court of Henry County, Hon. Wayne P. Strothmann
Opinion Vote: REVERSED AND REMANDED. Spinden and Howard, J.J., concur.
Opinion:
The Director of Revenue (Director) appeals from a judgment of the circuit court setting aside the revocation of Richard Justis's driver's license for an accumulation of points. The circuit court set aside the revocation because it was not supported by competent and substantial evidence. Because this court finds that (1) the Director presented competent and substantial evidence that Mr. Justis's conviction resulted in the assessment of twelve points under section 302.302.1., RSMo Cum. Supp. 1997, (2) the Director had no discretion under section 302.304.7, but to revoke Mr. Justis's license, and (3) Mr. Justis received sufficient notice under section 302.304.1, the cause is reversed and remanded with instructions.
Factual and Procedural History
On September 21, 1998, Mr. Justis pled guilty to the charge of driving with excessive blood alcohol content (BAC) in the Circuit Court of Henry County, Missouri. When the court reported the conviction to the Director, the court incorrectly reported that Mr. Justis had been convicted of driving while intoxicated (DWI). On October 30, 1998, Mr. Justis was issued a notice from the Director, pursuant to section 302.304, indicating that his driving privilege would be revoked for one year due to an accumulation of points for traffic convictions. The notice stated that the points added to Mr. Justis's record resulted from the following convictions: (1) 10/29/98 Driving while intoxicated -- 12 points; (2) 8/27/97 Speeding -- 3 points; (3) 10/24/96 Fail to yield right of way -- 2 points. On that same day, Mr. Justis was issued a second notice from the Director, which stated that his privilege to drive would be permanently denied, pursuant to section 302.060.
Mr. Justis filed a petition for judicial review, pursuant to section 302.311, RSMo 1994, in which he asserted that he had not been convicted for DWI, section 577.010, RSMo 1994, as indicated on the notice, but was in fact convicted for BAC, section 577.012. A hearing was held, at which time Mr. Justis made clear that he was appealing the point suspension, not the permanent denial of his driving privileges. During the hearing, Mr. Justis offered into evidence a copy of his judgment and sentence for BAC. The Director offered into evidence a certified copy of Mr. Justis's driving record. The record showed that, in addition to the conviction on September 21, 1998, Mr. Justis had nine prior DWI convictions. The Director told the court that while the notice was technically inaccurate for listing DWI instead of BAC, Mr. Justis was convicted of BAC and since it was not his first DWI or BAC conviction, the point value would be the same for a conviction under either charge. The circuit court took the case under advisement and stated, "So in essence, the argument boils down to they put in were driving while intoxicated in their notice, they should have put BAC. It would not change the point value under RSMo 302.302. They're one in the same points." The circuit court subsequently issued a judgment setting aside the revocation of Mr. Justis's license for one year due to an accumulation of points. The circuit court stated, in pertinent part, in its judgment:
The notice that was mailed to Plaintiff . . . indicates that twelve (12) of those accumulated points were assessed as a result of a driving while intoxicated conviction that was received and processed by the Department of Revenue on October 29, 1998. Plaintiff maintains that this assessment of points was in error, because he was not, in fact, convicted
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