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Kinzenbaw v. Director of Revenue12/18/2001
Appeal From: Circuit Court of Morgan County, Hon. Patricia F. Scott
Opinion Vote: REVERSED AND REMANDED.
White, Holstein, Benton, Stith and Price, JJ., concur; Limbaugh, C.J., concurs in separate opinion filed.
Opinion:
The director of revenue suspended Brent L. Kinzenbaw's driver's license for ten years on the grounds that Kinzenbaw has been convicted more than twice of driving while intoxicated. Kinzenbaw filed a petition in circuit court to review the suspension. The statute provides for "de novo" review.
The director filed an answer that included the administrative record upon which the suspension was based. At the circuit court hearing, neither party introduced evidence. The court held that the director failed to carry her "burden of proof" and entered judgment setting aside the denial of the license.
For reasons that follow, the Court holds: Kinzenbaw has the burden of producing evidence that he is qualified for a driver's license, and the director has the burden of producing evidence that he is not. The director meets her burden by introducing the administrative record. The burden of persuasion, as distinct from the burden of producing evidence, is at all times on Kinzenbaw and never shifts. It is Kinzenbaw's burden to prove that the facts on which the director relied in denying the license are not true or are legally insufficient to support the denial or suspension of the license.
The circuit court's judgment is reversed and remanded.
The Pleadings and Record in the Circuit Court
Kinzenbaw had a driver's license. The director notified Kinzenbaw, in the words of his circuit court petition admitted in the director's answer, "that the Operator's license previously issued by the Missouri Department of Revenue . . . will be suspended for a period of ten years for the alleged reason that the Plaintiff (Kinzenbaw) has been convicted three or more times of driving while intoxicated."
Kinzenbaw's petition in the circuit court is labeled as a "Petition to review suspension of driver's license." The director's answer treats the administrative action as a denial of Kinzenbaw's "application for driving privileges" under section 302.060(9). Whether a suspension or a denial of a license, the pleadings establish that the reason Kinzenbaw does not have a driver's license is the director's assertion that Kinzenbaw has three convictions for driving while intoxicated. From the pleadings, it appears that he is otherwise eligible.
In the director's answer, she "affirmatively states and alleges" that Kinzenbaw has a "BAC" conviction in Morgan County in 1993, a "DWI" conviction in Iowa in 1998, and a "DWI" conviction in Camden County in 1999. Attached to the director's answer and incorporated by reference is the administrative record purporting to show these convictions.
The circuit court hearing was brief; in its entirety the transcript consists of 31 lines. The prosecuting attorney representing the director said: "I would present no evidence at this time, your honor."
Kinzenbaw's attorney's entire case was: "We present no evidence, your honor. We'd ask for a judgment in our favor -- based upon a lack of evidence presented by the Department of Revenue."
Thereupon, the court observed that "the Director has the burden of going forward with the evidence . . . and failed to do so . . . ." When the trial court entered its written judgment in favor of Kinzenbaw the court said the department of revenue "failed to meet its burden of proof."
The director appealed. This court granted transfer after opinion by the court of appeals
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