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Ummelman v. Director of Revenue11/19/2001
Appeal From: Circuit Court of Reynolds County, Hon. William C. Seay
Opinion Vote: REVERSED.
Shrum, P.J., and Montgomery, concur.
Opinion:
The Director of Revenue ("Director") appeals the judgment of the Circuit Court of Reynolds County that set aside Director's ten-year denial of the driving privileges of David L. Ummelman ("Respondent"). Director raises one point of error discussed below.
The record shows that Respondent has had three state alcohol-related convictions. The first conviction occurred on January 4, 1985, in the Circuit Court of St. Louis, pursuant to Respondent's plea of guilty to driving while intoxicated. The second conviction occurred on October 11, 1994, in the Circuit Court of Iron County following a plea of guilty to driving with excessive blood alcohol content. The third conviction again occurred in the Circuit Court of Iron County on April 28, 1999, following its finding that Respondent was guilty of driving while intoxicated.
Subsequent to Respondent's one-year revocation period resulting from his third conviction, he took steps to have his license reinstated. Director denied Respondent's application and informed him that his license was suspended for ten years, pursuant to section 302.060(9), because he had been convicted more than two times for offenses "relating to driving while intoxicated." Respondent seasonably appealed the decision of Director to the Circuit Court of Reynolds County, pursuant to section 302.311. The circuit court ordered Director to set aside the denial of Respondent's driving privileges. It also determined that Respondent "was not represented by an attorney nor did he waive his right to an attorney, in writing, on his January 4, 1985 St. Louis County Driving While Intoxicated conviction," which the circuit court found to be required "as a basis for a Ten Year Minimum License Denial under the provisions of section 302.060(9) . . . ."
On appeal, Director posits circuit court error in ordering Director to reinstate the driving privileges of Respondent because section 302.060(9) calls for a denial of driving privileges when a driver has more than two state law violations involving alcohol related offenses, regardless of whether or not that driver was represented by counsel.
In reviewing a court-tried civil case, we adhere to the principles set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously applied or declared the law. Kayser v. Director of Revenue, 22 S.W.3d 240, 242 (Mo.App. 2000); McDonald v. Director of Revenue, 985 S.W.2d 375, 376 (Mo.App. 1999).
Citing Eaton v. Director of Revenue, 929 S.W.2d 282 (Mo.App. 1996), Director argues that the language in section 302.060(9) applies only to ordinance violations of a county or municipality and does not apply to state law convictions. This Court agrees.
We initially observe that a "driver cannot collaterally attack previous convictions in an action to challenge a driver's license being revoked or suspended." Kayser, 22 S.W.3d at 243.
In Eaton, this Court determined that, for purposes of the mandatory denial of driving privileges under section 302.060(9), the "judge/attorney and represented by/waived attorney" language found in the statute does not apply to state convictions. Eaton, 929 S.W.2d at 284.
Several cases have followed this Court's reasoning as set out in Eaton. In Lane v. Director of Revenue, 996 S.W.2d 117 (Mo.App. 1999), the Eastern District of this Court observed t
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