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State ex rel Director of Revenue v. Gaertner12/5/2000
Appeal From: Original Proceeding in Prohibition
Opinion Vote: PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE AND ORDERED TRANSFERRED.
All concur.
Opinion:
The Director of Revenue seeks a writ of prohibition to prevent the Circuit Court of St. Louis County from reviewing a driver's license revocation. The Director contends that the Circuit Court of St. Louis County lacks subject matter jurisdiction to review a driver's license revocation that arose when a driver refused to submit to a chemical test to determine blood alcohol content after being arrested in the City of St. Louis. Because the driver in such cases must petition for review in the county of his arrest, we make our preliminary writ of prohibition absolute and order transfer.
I. Facts
On September 2, 1999, law enforcement officers arrested Daniel Barnes for driving while intoxicated in the City of St. Louis, Missouri. The Director of Revenue subsequently issued Barnes a notice of revocation for refusing to submit to a chemical test to determine his blood alcohol content. On September 13, 1999, Barnes filed a "Petition to Review Revocation" in the Circuit Court of St. Louis County, the county in which he resides.
The Director filed a motion to dismiss the petition, asserting that the Circuit Court of St. Louis County lacked subject matter jurisdiction under section 577.041.4, RSMo Supp. 1999. The Director argued that the statute required the driver to file his petition in the Circuit Court of the City of St. Louis, the county in which he was arrested. The court denied the Director's motion on February 25, 2000. The Director then filed a petition for writ of prohibition in the court of appeals, which denied the writ on March 9, 2000. This petition followed.
II. Discussion
A.
" rohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party." State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998).
B.
The Director argues that the Circuit Court of St. Louis County exceeded its jurisdiction when it set the underlying cause for trial. He contends that any suit to review the revocation of a person's driver's license because that person refused to submit to a chemical test is restricted to the circuit court of the county "in which the arrest or stop occurred." The Director relies on section 577.041.4, RSMo Supp. 1999, which states, in relevant part:
If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit court or associate circuit court in the county in which the arrest or stop occurred. Section 577.041.4, RSMo Supp. 1999.
The Respondent, citing the legislature's use of the word "may," argues that the language of section 577.041.4 is permissive. He further argues that section 577.041.4 should be read in pari materia with section 302.311, RSMo 1994, which states, in relevant part:
In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence . . . . Section 302.311, RSMo 1994.
The Respondent contends that he is allowed to choose to bring his action either in the county in which the arrest occurred pursuant to section 577.041.4 or in the county of his residence consistent with section 302.311.
C.
The Respondent's argu
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