RANDALL A. NELSON v. DIRECTOR OF REVENUE, Respondent-Respondent.

RANDALL A. NELSON, )
)
Petitioner-Appellant, )
)
v. ) No. SD34264
)
DIRECTOR OF REVENUE, ) Filed: Sept. 22, 2016
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY
Honorable Matthew P. Hamner
AFFIRMED
The Director of Revenue (“the Director”) revoked the driving privileges of
Randall A. Nelson (“Driver”)1 for ten years under section 302.060.1(9)2 after Driver
received his third conviction for driving while intoxicated (“DWI”). Driver filed a
petition in the circuit court seeking limited driving privileges under section 302.309.3.
The Director filed a motion to dismiss Driver’s petition on the ground that Driver was
1
Portions of the record also refer to Driver as “Randall D. Nelson.”
2
The version of the statutes in effect when Driver filed his petition for review of his revocation on August
31, 2015, govern this case. See State ex rel. Dir. of Revenue v. Mobley, 49 S.W.3d 178, 180 (Mo. banc
2001). Thus, unless otherwise noted, all statutory references are to RSMo Noncum. Supp. 2015.
1
ineligible for such relief under section 302.309.3(6)(b) because Driver had “a conviction
for a felony the commission of which involved a motor vehicle.”
The circuit court granted the Director’s motion to dismiss, and Driver now
appeals, claiming in a single point that he was eligible for limited driving privileges
because “the actual triggering offense which resulted in the revocation of [his] driving
privilege[s] was a misdemeanor.” Finding no merit in this claim, we affirm the judgment
of the circuit court.
Standard of Review
We review a trial court’s judgment sustaining a motion to dismiss de novo. Mills
v. Dir. of Revenue, 407 S.W.3d 124, 125 (Mo. App. E.D. 2013). “When, as here, the
facts of a case are uncontested and the resolution of the issue turns solely on the
interpretation of pertinent statutes, a question as to the authority of the trial court to hear
the petition is purely a question of law, which is also reviewed de novo.” Id. (internal
quotation and brackets omitted).
Uncontested Facts and Procedural Background
Driver was convicted of misdemeanor DWI on December 3, 1997. On February
16, 2001, Driver was convicted of felony DWI and felony driving while revoked or
suspended (“DWR”). Based upon the February 16th felony convictions, the Director
issued a points revocation of Driver’s license that remained in effect until May 9, 2001.3
On November 7, 2012, Driver was convicted of misdemeanor DWI. As this
constituted Driver’s third conviction for DWI, the Director imposed the ten-year
suspension that prompted Driver’s petition for limited driving privileges. Driver filed his
3
Driver was assessed 12 points for each of his two February 16th felony convictions. Section 302.304.7,
RSMo 2000, required the Director to “revoke the license and driving privilege of any person” who “has
accumulated twelve points in twelve months . . . .”
2
“PETITION TO REVIEW REVOCATION OF DRIVER’S LICENSE” pursuant to
section 302.060 on August 31, 2015. The Director responded with a motion to dismiss
that claimed section 302.309.3(6)(b) prohibited the circuit court from granting Driver a
limited driving privilege because he had been convicted of felony DWI in 2001. After
holding a hearing on the motion, the circuit court dismissed Driver’s petition,4 and this
appeal timely followed.
Analysis
Driver argues that section 302.309.3(6)(b) does not bar him from obtaining
limited driving privileges because “while [Driver] has previously been convicted of a
felony in the commission of which a motor vehicle was used, the actual triggering
offense which resulted in the revocation of [Driver]’s driving privilege was a
misdemeanor.” We disagree.
Two statutes govern the outcome of this appeal. Section 302.060 prohibits the
Director from issuing licenses to people who fall within certain categories. Mobley, 49
S.W.3d at 179. “Section 302.309 . . . sets out the circumstances under which the Director
may return a suspended or revoked license; the court or [the] Director may grant limited
driving privileges.” Id.
The Director must deny driving privileges to anyone who has been convicted of
more than two DWI’s. Section 302.060.1(9). During the ten-year denial period, a driver
may petition for limited driving privileges if “he is not otherwise ineligible for limited
driving privileges under Section 302.309.3.” Mills, 407 S.W.3d at 127 (quoting
4
The parties apparently treated Driver’s motion as a petition for limited driving privileges pursuant to
section 302.309.3.
3
Mansheim v. Dir. of Revenue, 357 S.W.3d 273, 276 (Mo. App. E.D. 2012)).5 Section
302.309.3(6) lists several acts that make a driver “otherwise ineligible” for limited
driving privileges. As relevant here, any person “whose license at the time of application
has been suspended or revoked for . . . . [a] conviction of any felony in the commission of
which a motor vehicle was used” is “otherwise ineligible for a limited driving
privilege[.]” Sections 302.309.3(6)(b) and 302.309.3(8)(a).
Driver’s case is similar to Hagan v. Dir. of Revenue, 968 S.W.2d 704 (Mo. banc
1998). In that case, Hagan had received a ten-year denial of his driving privileges for
accruing multiple DWI convictions, one of which was a felony. Id. at 705. Our supreme
court determined that because Hagan had violated section 302.309.3(5) (now numbered
302.309.3(6)(b)), he was held to be “otherwise ineligible” for a limited driving privilege
under section 302.309.3(6)(a) (now numbered 302.309.3(8)(a)).6 Id. at 707. Hagan
argued (as Driver does here) that his felony DWI conviction should only bar a limited
driving privilege until the point revocation associated with his felony conviction had
lapsed. Id. at 706. The Court rejected this argument, found that the provisions of
5
Mills also recites that a driver must have “served three years of the ineligibility period without conviction
for any drug—or alcohol-related offense[.]” 407 S.W.3d at 127 (quoting Mansheim, 357 S.W.3d at 276).
Effective July 5, 2013, this provision was removed from section 302.309.3(8)(a) and replaced with other
requirements not applicable here. After the ten-year revocation has expired, the driver may petition for a
license if he meets certain prerequisites and his conduct shows that he is no longer a threat to other
members of the public. Section 302.060.1(9).
6
There have been multiple amendments to section 302.309 since Hagan was decided. “Most notably and
applicably, new subdivisions have been added to subsection 3. Compare Section 302.309.3, RSMo 1997
with Section 302.309.3, RSMo 2012. What was previously designated—and interpreted by the Hagan
court—as subdivisions (5) and (6) have now transitioned to subdivision (6) and (8), respectively.” Mills,
407 S.W.3d at 129. However, Hagan’s holding that persons who commit those acts listed in subdivision
(6) of subsection 3 are not “otherwise eligible” for limited driving privileges under subdivision (8) is still
applicable. See id. (analyzing section 302.309.3 through the lens of a driver whose conduct fell within
subdivision (6)(f)). Indeed, section 302.309 has been amended once more from the 2012 version applied in
Mills, but Driver does not argue that this latest round of statutory revisions affect the applicability of
Hagan or its progeny to his case.
4
302.309 provided clear guidance, and held that Hagan was not eligible for limited driving
privileges during the ten-year denial of his driving privileges pursuant to section 302.060.
Id. at 706-07.
Here, Driver’s driving privileges were suspended for ten years pursuant to section
302.060.1(9) for accruing more than two DWI convictions. Driver previously had his
license suspended for felony DWI and felony DWR—two felonies in the commission of
which a motor vehicle was used. As a result, Driver was “otherwise ineligible” for a
limited driving privilege. Sections 302.309.3(6)(b) and 302.309.3(8)(a).
The fact that Driver is no longer serving the point-based revocation stemming
from his previous felony convictions is irrelevant. The relevant fact is that Driver’s
convictions for DWI and DWR were felonies that involved the use of a motor vehicle.
Consequently, Driver is statutorily ineligible for a limited driving privilege. See, e.g.,
Hagan, 968 S.W.2d at 706; State ex rel. Dir. of Revenue v. Curless, 181 S.W.3d 595,
598 (Mo. App. S.D. 2005); Harris v. Dir. of Revenue, 132 S.W.3d 897, 902 (Mo. App.
S.D. 2004); Conrad v. Dir. of Revenue, 20 S.W.3d 607, 609 (Mo. App. E.D. 2000).
Driver attempts to distinguish Hagan on the basis that Hagan’s felony DWI was
the last DWI he received before the ten-year denial of his license, whereas Driver’s
felony DWI was the second of his three DWI convictions. In making this argument,
Driver attempts to impose requirements not present in the language of the governing
statutes. A driver must have three or more DWI convictions to “trigger” a ten-year denial
of his driving privileges. Section 302.060.1(9). The language of the statute makes no
distinction on the basis of whether those DWI convictions are felonies or misdemeanors.
Id. If a driver is subject to such a ten-year denial, then section 302.309 determines
5
whether that person is eligible for limited driving privileges. Mobley, 49 S.W.3d at 179.
Contrary to Driver’s argument, section 302.309.3(6)(b) does not require that the felony
conviction involving the use of a motor vehicle “trigger” the ten-year denial pursuant to
302.060.1(9), and it does not require that the felony conviction be for DWI. Section
302.309.3(6)(b).
Ultimately acknowledging the inevitability of this result under a plain reading of
the statutes at issue, Driver claims that it is unfair to restrict his ability to gain limited
driving privileges based on remote conduct for which he has already served a suspension.
Once again, this claim fails under the principles announced in Hagan. Addressing a
substantially similar argument, Hagan held that “[t]hat argument is one of policy that has
been determined by the legislature[,]” 968 S.W.2d at 706, and this court has no authority
to interfere with that policy decision under the guise of statutory interpretation. Id.
Finally, Driver points us to the amendments to section 302.309 that will become
effective on January 1, 2017, claiming that they evidence a legislative “intent that limited
privileges be generally available.” To the contrary, “[t]he purpose of subsection .3[(6)] is
to protect the public from those drivers who present a greater risk, not [the driver’s]
interest in driving.” Hagan, 968 S.W.2d at 706. To the extent that the referenced
amendments might be interpreted to reflect a change in legislative policy, Driver may not
yet avail himself of any such future benefit.
Driver’s point is denied, and the judgment of the circuit court is affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. – CONCURS
MARY W. SHEFFIELD, C.J. – CONCURS
6