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Hobbs v. Director of Revenue6/30/2003
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART.
Draper III, P.J. and Shaw, J., concur.
Opinion:
The Director of Revenue appeals the judgment reinstating Troy Hobbs's driving privileges and assessing costs against the Director. We affirm in part, and reverse in part.
I. BACKGROUND
Hobbs applied for and was denied driving privileges for ten years on the grounds that he had three convictions for driving while intoxicated under section 302.060(9) RSMo 2000. In his petition for a trial de novo , Hobbs alleged that he had only two DWI convictions, one in Missouri and one in New Hampshire, and therefore his license should be denied for only five years instead of ten under section 302.060(10).
At trial, Hobbs's Missouri and New Hampshire driving records, which contained the Missouri conviction and "defaults" on two DWI charges in New Hampshire, were admitted into evidence. Hobbs conceded that he pled guilty to a DWI in Missouri. He also testified that while driving in New Hampshire on vacation he was stopped once and was arrested for and charged with one DWI. He decided not to return to New Hampshire or to answer the charge. He believed there was an open case in New Hampshire, but that he had no convictions there.
The trial court entered a judgment setting aside the disqualification and assessed costs against the Director.
II. DISCUSSION
This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or the court erroneously declared or applied the law. Hinnah v. Director Of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).
A. Denial of Driving Privileges
At the trial de novo from the denial of driving privileges, the driver has the initial burden of producing evidence that he is qualified for a driver's license. Kinzenbaw v. Director of Revenue , 62 S.W.3d 49, 50 (Mo. banc 2001). Hobbs's driving record, admitted into evidence by the Director, demonstrates that Hobbs had been duly licensed in Missouri, which discharges his burden. See id. at 54. Thus, the burden of production shifted to the Director to present evidence that Hobbs is not entitled to a license. See id. at 50, 54-55.
Here, the Director must make a prima facie showing of the facts needed to support denial under section 302.060(9), namely more than two convictions for driving while intoxicated. See id.; see also Stellwagon v. Director of Revenue , 91 S.W.3d 113, 115 (Mo. banc 2002). To make a prima facie showing, the Director must produce enough evidence to allow the court to infer that there have been more than two convictions and rule in the Director's favor in the absence of other evidence contradicting that fact. See B LACK 'S L AW D ICTIONARY , 579, 1209 (7th ed. 1999). We disagree that the Director made a prima facie case.
The Missouri conviction is uncontested; thus, the only issue is whether there are two New Hampshire convictions. The Director produced the New Hampshire record showing two entries for DWI, both from the same date, but with different docket numbers. The "disposition" of each case is " default," and the record indicates that Hobbs's license and operating privileges were suspended.
The Director first contends that Hobbs judicially admitted in his petition at least one New Hampshire conviction, which should also prove the second conviction. It is true that allegations in a petition, admitted in an answer, are judicial admissions and obviate any need for any evidence on that issue. Piel v. Piel , 918 S.W.2d 373, 375 (Mo. App. E.D. 1996). But Hobbs's allegation that
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