Judges: JOHN ASHCROFT
Filed Date: 9/6/1983
Status: Precedential
Modified Date: 7/5/2016
Dear Representative Scoville:
This opinion is in response to your request for an opinion as follows:
1. Does the language of Section 4.1 of C.C.S.H.C.S.S.C.S.S.B. Nos. 318 and 135, 1st Reg. Sess., 82nd G.A. (page 12, lines 1-12 of the Conference Committee Substitute), mean that the submission of the verified report is only required for violations of sections
577.010 and577.012 ?2. Does the section mentioned above preclude submission of verified reports for county and municipal violations for driving while intoxicated or driving with excessive blood alcohol content?
3. Does Section 3.2 of the above-mentioned act (page 11, lines 9-15) require the Department of Revenue to consider only the reports mentioned in questions 2 and 3 above?
4. Does Section
577.023 .13 of this act (page 8, lines 84-87) preclude a county or municipality from enhancing a driving while intoxicated conviction if the previous conviction was for driving while intoxicated?
The principle task of statutory construction is to seek the intent of the legislature. Breeze v. Goldberg,
As finally passed C.C.S.H.C.S.S.C.S.S.B. Nos. 318 and 135 (82nd General Assembly, 1st Regular Session) (hereafter S.B. 318), instructs the Department of Revenue to:
[S]uspend the license of any person upon its determination that the person was arrested upon probable cause to believe he was driving a motor vehicle while the alcohol concentration in the person's blood or breath was thirteen hundredths of one percent . . . . Id. Section 3.1
The Department of Revenue is to make a determination as to whether a person was driving a motor vehicle with a thirteen-hundredths of one-percent blood alcohol content "on the basis of the report of a law enforcement officer required in section 4 of this act, . . ." Id., Section 3.2.
Section 4.1, S.B. 318, provides:
A law enforcement officer who arrests any person for a violation of section
577.010 or577.012 , RSMo, and in which the alcohol concentration in the person's blood or breath was thirteen hundredths of one percent or more by weight, shall forward to the department a verified report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated section577.010 or577.012 , RSMo, a report of the results of any chemical tests which were conducted, and a copy of the citation and complaint filed with the court. [Emphasis added].
The General Assembly passed S.B. 318 only after considerable debate and amendment. The truly agreed to and finally passed version was a conference committee substitute for a house committee substitute for a senate committee substitute for the bill as originally filed as Senate Bill Nos. 318 and 135. The original versions of the bills did not contain the language found in Section 4.1, quoted in full above; section 4.1 was added by the senate committee. Following the senate committee amendments, the house committee deleted Section 4.1 in favor of the following language:
2.(a) If a person arrested with probable cause to believe that the person was driving while intoxicated has an alcohol concentration in blood or breath of fifteen hundredths of one percent (.15) . . . as shown by the sworn report of the arresting officer to the department of revenue, the department may suspend the license of such person . . . . The department shall make a determination of these facts on the basis of a verified report of the arresting officer setting forth the facts establishing probable cause for the arrest of the licensee and establishing the alcohol concentration in the person's blood or breath. . . . H.C.S.S.C.S.S.B. 318 135, Section 3.2(a)
The conference committee accepted the senate committee version — a version which is much more strict in its language and which, unlike the general arrest provisions of the house committee language, makes specific reference to violations of Sections
Comparing the truly agreed to and finally passed version with the house committee substitute, which was not adopted, we are led to the conclusion that the General Assembly rejected the broad language of the house committee, which would have provided a suspension mechanism for all arrests based on probable cause to believe a person was operating a vehicle while under the influence of alcohol with a blood alcohol content of fifteen-hundredths, irrespective of the legal basis for the arrest — be it state statute or county or municipal ordinance — in favor of language limiting its applicability to arrests based on violations of state law. Given this clear choice by the legislature, it is our conclusion that the language of Section 4 is not ambiguous. Consistent with the rules of statutory construction to which we earlier referred, there is no room for statutory construction. We are confined to the plain meaning of the language employed by the legislature. See, DePoortere v. Commercial Credit Corp., supra; State ex rel. DeGraffenreid v. Keet, supra; and Schimmer v. H. W. Freeman Const. Co., Inc., supra.
We note that S.B. 318 amends Section
Any charge alleging a violation of section
577.010 or577.012 or any county or municipal ordinance prohibiting driving while intoxicated . . . . [Emphasis added]
The adoption of this language by the General Assembly in the same bill indicates that where the legislature intended to do so, it expressly included references to county and municipal ordinance violations. The absence of this language in Section 4 is, in our opinion, significant.
In answer to your first question, and for the reasons we have expressed, it is our opinion that the verified report described in Section 4 of S.B. 318 is required only when the arresting officer describes the offense charged as a violation of Section
Your second and third questions are more clearly stated if combined and asked as follows:
Can the Department of Revenue administratively revoke a person's driver's license based on a verified report filed by an arresting officer who describes the offense charged as a county or municipal violation?
Section 3.2 of S.B. 318 provides in pertinent part:
The department [of revenue] shall make a determination of these facts [that the person was arrested upon probable cause to believe he was driving a motor vehicle while the alcohol concentration in the persons' blood or breath was thirteen hundredths of one percent or more . . . Section 3.1, S.B. 318] on the basis of the report of the law enforcement officer required in section 4 of this act. . . . [Emphasis added.]
We find no ambiguity in Section 3.2. The department is permitted to base its factual determination on the required report. In our answer to your first question, we opined that a report is required only where the arresting officer describes the offense charged as a violation of Sections
Again, the canons of construction compel our conclusion. We must presume that the words "required in section 4 are not idle verbiage. State ex rel. Ashcroft v. City of Sedalia,
We turn now to your fourth question. In Missouri, a municipal ordinance may go further its its prohibition than a state statute provided the ordinance does not attempt to authorize what the legislature has forbidden and unless the state statute is preclusive. City of Kansas City v. LaRose,
Section
A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction; except that no conviction of a violation of a municipal or county ordinance in a municipal or county court may be used to enhance a term of imprisonment in any subsequent proceeding.
Section
As always in these opinions, we seek to analyze the law and decide the issues presented as would a court faced with a similar legal question. Yet this opinion deserves — and has received — special attention. Drunk driving is a plague on our society. Our streets and highways are stained with innocent blood.
Regrettably, our opinion holds that S.B. 318 does not address the drunk driving problem as completely as it might. Had Section 4.1 of S.B. 318 read:
A law enforcement officer who arrests any person for a violation of section577.010 or577.012 , RSMo or for a violation of any county or municipal ordinance prohibiting driving while intoxicated. . . . ,
this opinion would have reached a much different result. We call on the legislature to adopt corrective legislation at the earliest possible date.
CONCLUSION
It is the opinion of this office that the verified report described in Section 4 of C.C.S.H.C.S.S.C.S.S.B. Nos. 318 and 135 (82nd General Assembly, 1st Regular Session) is required only when the arresting officer describes the offense charged as a violation of Sections
very truly yours,
JOHN ASHCROFT Attorney General
STATE EX REL. ZOOLOGICAL PK. SUBD. ST. LOUIS v. Jordan ( 1975 )
Kansas City v. LaRose ( 1975 )
In Re Tompkins'estate ( 1960 )
Staley v. Missouri Director of Revenue ( 1981 )
State Ex Rel. Hewlett v. Womach ( 1946 )
Schimmer v. H. W. Freeman Construction Co. ( 1980 )
State Ex Rel. DeGraffenreid v. Keet ( 1981 )