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Weiland v. Director of Revenue11/14/2000
On December 18, 1998, Appellant Julie T. Weiland was arrested and charged with driving while intoxicated in the state of Missouri. That same day, acting on behalf of Respondent, Director of Revenue, the arresting officer served Weiland with a Notice of Suspension of Driving Privileges for allegedly driving a motor vehicle while the level of alcohol concentration in her blood exceeded .10% or more by weight.
An administrative hearing on the suspension of Weiland's driver's license was held on January 18, 1999. On March 20, 1999, the Missouri Department of Revenue issued an order sustaining the suspension of Weiland's license.
On March 31, 1999, Weiland filed a Petition for Trial De Novo in the Circuit Court of Clay County. On August 30, 1999, the Circuit Court entered its amended judgment stating:
Now on this 30th day of Aug., 1999, the Court having considered the evidence, finds and concludes that based upon a preponderance of the evidence Petitioner is found to have been arrested upon probable cause to believe Petitioner was in actual physical control of a motor vehicle while the alcohol concentration in her blood was .10% or more by weight.
THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that the suspension or revocation of Petitioner's driver's license in the State of Missouri is authorized and required by Sections 302.500 through 302.541, RSMo . 1994 and RSMo . Supp. 1996. (emphasis added).
Thereafter, Weiland timely filed a notice of appeal with this court. Oral arguments were held on April 5, 2000, and this Court handed down a Per Curium Order Opinion on May 2, 2000, affirming the suspension of Weiland's driving privileges. Weiland v. Director of Revenue, No. 57662, slip op. (Mo. App. W.D. May 2, 2000). On May 15, 2000, Weiland filed a "Motion For Rehearing Or, In The Alternative, For Transfer To The Supreme Court." We granted Weiland's motion for rehearing and denied her motion for transfer to the Supreme Court. Rehearing was conducted before the Court en banc on July 12, 2000.
In her sole point on appeal, Weiland contends that the trial court erred in sustaining the suspension of her operating privileges because the finding that she was arrested upon probable cause to believe that she was in "actual physical control" of a motor vehicle while intoxicated is insufficient as a matter of law to support a suspension. She asserts that the statutory definition of "driving" no longer includes "actual physical control" and that the trial court erred in applying that language.
In reviewing a driver's license suspension or revocation case, we will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Soval v. Director of Revenue, 2 S.W.3d 854, 856 (Mo. App. W.D. 1999). If the trial court erroneously declared or applied the law, its judgment will be afforded no deference on appeal. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo. App. W.D. 1998).
Section 302.505 authorizes the suspension or revocation of a person's driving privileges for driving while intoxicated. That section states:
The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight. . . .
Section 302.505.1, RSMo. Cum. Supp. 1996; Rinne v. Director of Revenue, 13 S.W.3d 658, 659 (Mo. App. W
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