Bradley C. Baldwin, Appellant, v. Director of Revenue, State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Bradley C. Baldwin, Appellant, v. Director of Revenue, State of Missouri, Respondent. Case Number: WD57567 Handdown Date: 06/27/2000 Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske Counsel for Appellant: Jeffrey S. Eastman Counsel for Respondent: Evan J. Buchheim Opinion Summary: Bradley Baldwin was driving his truck in excess of the posted speed limit and weaving between lanes when he was stopped by a police officer. Baldwin admitted to drinking and he subsequently failed a field sobriety test and was arrested for driving while intoxicated. Baldwin was transported to the police station where his blood alcohol level was recorded at .133%. Thereafter, his driving privileges were suspended. Baldwin requested administrative review of the suspension and after an administrative hearing, the suspension was upheld. Baldwin then petitioned the circuit court for de novo review which was granted, and the circuit court ruled in favor of the Director of Revenue. Baldwin appeals. AFFIRMED IN PART AND REVERSED IN PART. Division I holds: The trial court erred in holding that (a) Baldwin must file proof of financial responsibility as a prerequisite to reinstatement of his license and (b) the Department of Revenue need not expunge the official records and recordations of his suspension or revocation pursuant to section 302.545, RSMo Cum. Cupp. (1996). When interpreting statutes, courts must look to the intent of the legislature in passing the statute. This Court cannot rewrite the statute. Thus, if the legislature intended to place a cap on the level of blood alcohol content that would remove a driver, under twenty one years of age, from the protections of the statute, they could have done so. Citation: Opinion Author: Joseph M. Ellis, Judge Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Spinden and Newton, JJ., concur.

Opinion: On October 17, 1998, Parkville police officer Jon Jordan observed Bradley Baldwin driving his truck in excess of the posted speed limit and weaving between lanes. Officer Jordan stopped the Baldwin vehicle, and when he requested that Baldwin exit the vehicle, the officer noted a strong odor of alcohol. Baldwin admitted to drinking and subsequently failed a field sobriety test, and was arrested for driving while intoxicated, section 577.010.(FN1) Baldwin was transported to the Parkville Police Department, where his blood alcohol level was recorded at .133%. He was issued a notice of suspension of his driving privileges, to which he filed a request for administrative review. An administrative hearing was conducted which upheld the suspension of Baldwin's driving privileges by the Director of Revenue (Director). On March 3, 1999, Baldwin filed a petition for de novo review in the Circuit Court of Platte County, arguing that section 302.535(2) was unconstitutional and deprived him of a meaningful hearing before an impartial tribunal prior to entry of the order of suspension. The case was heard on July 14, 1999, and the court took the matter under advisement.(FN2) On July 16, 1999, the trial court entered a judgment for Director, finding that "Section 302.535(2) RSMo is constitutional and that Petitioner is not entitled to have his suspension treated as a 'zero tolerance' suspension and that Petitioner is not eligible for expungement of his suspension as provided for 'zero tolerance' suspensions pursuant to 302.545 RSMo." This appeal followed. In his sole point of error on appeal, Baldwin argues that the trial court erroneously interpreted and applied the law when it determined that the record of his license suspension was not subject to expungement under section 302.545, and that he was required to file proof of financial responsibility for reinstatement of his driving privileges, because he was under 21 years of age at the time of his arrest. He relies on the 1996 amendments to sections 302.505 and 302.541, as well as the 1996 enactment of section 302.545, otherwise generally known as the "Zero Tolerance Law." He contends that pursuant to these statutes drivers under 21 years of age whose privileges have been suspended or revoked pursuant to section 302.505 are exempt from filing proof of financial responsibility and are entitled to expungement of records, even if the underage driver's blood alcohol content exceeded .10%. The Director argues, without citation to authority, that Baldwin's construction of the statute is contrary to the General Assembly's intent in passing the Zero Tolerance Law and that the law should be construed to contain a cap on blood alcohol content of .099%. Appellate review of this case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decision of the trial court will be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32. We review the evidence and reasonable inferences drawn therefrom

in the light most favorable to the trial court's decision. Miller v. Director of Revenue, 719 S.W.2d 787, 789 (Mo. banc 1986). However, "[d]eference to the trial court's findings is not required when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict." Fischer v. Director of Revenue, 928 S.W.2d 424, 425-26 (Mo. App. S.D. 1996)(citations omitted). Our purpose when interpreting statutes is to determine the intent of the legislature. American Healthcare Management, Inc. v. Director of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999). When the legislature amends a statute, the amendment is presumed to have some effect. Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998); Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). In deciding the effect of the amendment, the Court looks to the words used in the statute and the plain and ordinary meaning of those words. American Healthcare Management, 984 S.W.2d at 498; Wollard, 831 S.W.2d at 203. When the legislative intent cannot be ascertained by giving the language of the statute its plain and ordinary meaning, the statute is considered ambiguous, and only then are the rules of statutory construction applied. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996). Under Missouri law, a driver is considered intoxicated when his or her blood alcohol content is .10% or greater. Section 577.037.1, RSMo Cum. Supp. (1996). Such person is subject to license suspension or revocation. Section 302.505.1, RSMo Cum. Supp. (1996). Prior to 1996, section 302.505.1 provided: The department shall suspend or revoke 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 ten-hundredths of one percent or more by weight of alcohol in his blood, based on the definition of alcohol concentration in section 302.500. Section 302.505.1, RSMo (1994) (emphasis added). In 1996, the General Assembly amended section 302.505, and the revision is otherwise referred to as Missouri's "Zero Tolerance Law." Director of Revenue v. Christman, 968 S.W.2d 737, 739 (Mo. App. E.D. 1998). As a result of the revision, the following provision was added: ...or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, RSMo,(FN3) or driving with excessive blood alcohol content in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight. Section 302.505.1(FN4) (emphasis added). At the same time, the legislature amended section 302.541.2 to read as follows: Any person less than twenty-one years of age whose driving privilege has been suspended or revoked solely for a first determination pursuant to sections 302.500 to 302.540 that such person was driving a motor vehicle with two-hundredths of one percent or more blood alcohol content is exempt from filing proof of financial responsibility with the department of revenue in accordance with Chapter 303, RSMo, as a prerequisite for reinstatement of driving privileges or obtaining a restricted driving privilege as provided by section 302.525.

Section 302.541.2 (emphasis added). Finally, the legislature adopted section 302.545, which provides in pertinent part: Any person who is less than twenty-one years of age and whose driving privilege has been suspended or revoked, for a first determination under sections 302.500 to 302.540, that such person was driving with two-hundredths of one percent of blood alcohol content, shall have all official records and all recordations maintained by the department of revenue of such suspension or revocation expunged two years after the date of such suspension or revocation, or when such person attains the age of twenty-one, whichever date first occurs. Such expungement shall be performed by the department of revenue without need of a court order. Section 302.545.1 (emphasis added). Sections 302.505.1, 302.541.2, and 302.545.1 are clear and unambiguous. Section 302.505.1 expressly declares that the license of (a) drivers "less than twenty-one years of age when stopped," with (b) "a blood alcohol content of two-hundredths of one percent or more by weight" shall be suspended or revoked. Section 302.505.1 (emphasis added). Likewise, section 302.541.2 unequivocally and clearly states that (a) "[a]ny person less than twenty-one years of age" suspended or revoked for (b) "driving a motor vehicle with two-hundredths of one percent or more blood alcohol content" (c) "is exempt from filing proof of financial responsibility with the department of revenue . . . as a prerequisite for reinstatement of driving privileges. . . ." Section 302.541.2 (emphasis added). And finally, section 302.545.1 unambiguously provides that (a) "[a] ny person who is less than twenty-one years of age" suspended or revoked for (b) "driving with two-hundredths of one percent of blood alcohol content" (c) "shall have all official records and all recordations maintained by the department of revenue of such suspension or revocation expunged. . . ." Section 302.545.1 (emphasis added). The Director urges us to re-write sections 302.541 and 302.545.1 to read "with a blood alcohol content between two-hundredths of one percent and .099%," instead of "with a blood alcohol content of two-hundredths or more by weight." This we cannot do. Courts have no authority to read into a statute a legislative intent which is contrary to the intent made evident by the plain and ordinary language of the statute. Kearney Special Road Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). If the legislature intended to place a cap in the statutes at .099%, it could easily have done so. However, it clearly chose not to and indeed stated with precision exactly what it intended, "two-hundredths of one percent or more." This reflects a considered judgment on the part of the legislature not to place a cap in the expungement and financial responsibility provisions. We recognize that "[p]ublic policy as established by the general assembly calls for strict enforcement of the sanctions against driving while intoxicated," Vangilder v. Director of Revenue, 954 S.W.2d 31, 33 (Mo. App. E.D. 1997), and the Zero Tolerance Law provided for a lowered threshold for apprehension of those drivers under the age of twenty-

one who have consumed any appreciable amount of alcohol. However, by enacting the specific provisions of sections 302.541.2 and 302.545, the legislature demonstrated an intent to give youthful drivers a second chance following a sole incidence of driving while intoxicated. "The legislature has imposed a more stringent blood alcohol content standard for the suspension or revocation of licenses of drivers under age twenty-one. For the legislature to confer additional safeguards to those same drivers is rational." Riche v. Director of Revenue, 987 S.W.2d 331, 337 (Mo. banc 1999). "Section 302.505.1 clearly expresses a legislative intent proscribing minors from operating a motor vehicle with a blood alcohol content in excess of .02%."(FN5) Middleton v. Director of Revenue, 992 S.W.2d 904, 907 (Mo. App. S.D. 1999) (emphasis added). The statutory provisions apply to all drivers under the age of twenty-one at the time of a first offense, who exhibit a blood alcohol level over .02%. The judgment of the trial court is reversed insofar as it holds that (a) Baldwin must file proof of financial responsibility as a prerequisite to reinstatement of his license and (b) the Department of Revenue need not expunge the official records and recordations of his suspension or revocation pursuant to section 302.545. In all other respects, the judgment is affirmed. All concur. Footnotes: FN1. RSMo (1994). FN2. No transcript of the trial court hearing was submitted on appeal. FN3. "A person commits the crime of 'driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition." Section 577.010.1, RSMo (1994)(emphasis in original). FN4. This and all subsequent statutory references are to RSMo Cum. Supp. (1996) unless otherwise indicated. FN5. We are mindful that the Southern District recently stated in dictum that "[s]ection 302.545, RSMo Cum. Supp. (1998), authorizes the expungement of the Department records, but it applies only to persons under twenty-one years of age whose driving privilege has been suspended or revoked for a first determination that they were driving with a blood alcohol content of .02 to .10." Ford v. Director of Revenue, 2000 WL 150772, *3 (Mo. App. S.D. 2000). The dictum in Ford appears to be in direct conflict with the quote from Middleton in the main text. Moreover, as discussed herein, there is no statutory basis to support the statement in Ford. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.