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Allen v. Director of Revenue11/13/2001
Appeal From: Circuit Court of Mercer County, Hon. Andrew A. Krohn
Opinion Vote: AFFIRMED.
Smart, Jr., and White Hardwick, JJ., concur.
Opinion:
Department of Revenue's director appeals the circuit court's judgment reinstating Jerry D. Allen's driving privileges. The director revoked Allen's driving license pursuant to section 577.041 because Allen refused to submit to a breath test after being arrested for driving while intoxicated. Because the director acted beyond the scope of his authority as set by section 577.041, we affirm the circuit court's judgment setting aside the director's revocation of Allen's driving license.
The evidence established that the arresting officer submitted an unsigned and unsworn alcohol influence report to the director asserting that he had reasonable grounds to believe that Allen was driving a motor vehicle while in an intoxicated condition and that Allen refused to submit to a breath test. Based on the officer's unsworn report, the director of revenue revoked Allen's driving privileges. Allen filed a petition for review in circuit court. Judicial review of these matters is de novo.
At trial, the director's only evidence was the director's records, which consisted of the officer's unsworn alcohol influence report. The circuit court ruled that the director's evidence did not establish that the officer had reasonable grounds to believe that Allen was driving the vehicle while in an intoxicated condition, so it set aside the director's revocation and reinstated Allen's driving license.
The General Assembly mandated in section 577.041.2 that, in cases involving a driver's refusal to submit to a chemical test, an arresting officer must "make a sworn report to the director of revenue," stating among other things that the officer has " easonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated or drugged condition" and " hat the person refused to submit to a chemical test[.]" Section 577.041.3 says, "Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year[.]"
As an administrative agency, the Department of Revenue has only those powers expressly conferred or necessarily implied by Missouri's constitution or by statute. Bodenhausen v. Missouri Board of Registration for the Healing Arts, 900 S.W.2d 621, 622 (Mo. banc 1995). Because administrative law is a matter solely of constitutional or statutory creation, the courts must follow the procedures provided by these laws. Sterneker v. Director of Revenue, 3 S.W.3d 808, 810-11 (Mo. App. 1999) (quoting Wates v. Carnes, 521 S.W.2d 389, 390 (Mo. 1975), and Spitcaufsky v. Hatten, 182 S.W.2d 86, 95 (Mo. banc 1944) ). See also Jennings v. Director of Revenue, 992 S.W.2d 249, 252 (Mo. App. 1999).
Section 577.041.2 specifically requires that the arresting officer "make a sworn report to the director of revenue[.]" The director's receiving this sworn report is what activates the director's authority to revoke a driving license. He has no power to act before then. By requiring a sworn report, the General Assembly affords some measure of reliability and protection to a licensee, and the director's ignoring this mandate thwarts this protection. The sworn report, therefore, is essential to the validity of the director's subsequent actions. If the director does not receive a sworn report, his subsequent actions are void.
Some courts have held that proof that a sworn report was made and sent to the director of revenue is not essential for the circuit court's determination of the issues set for
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