Derrick O. Carr, Appellant v. Director of Revenue, 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: Derrick O. Carr, Appellant v. Director of Revenue, Respondent. Case Number: WD59097 Handdown Date: 06/29/2001 Appeal From: Circuit Court of Jackson County, Hon. Margaret Louise Sauer Counsel for Appellant: Robert J. Hiler Counsel for Respondent: Curtis F. Thompson Opinion Summary: Derrick Carr exercised his right to an administrative hearing to contest the suspension or revocation of his driver's license after an arrest for driving while intoxicated. When his attorney's request for a continuance was denied, the hearing officer entered a default judgment against him, and the circuit court dismissed his petition for trial de novo for lack of subject matter jurisdiction. Carr appeals, contending that the court erred in granting the Director's motion to dismiss because the default judgment sustaining the administrative suspension of his Missouri driver's license was a final administrative decision, and sections 302.350 and 302.535 empower circuit courts with subject matter jurisdiction to hear appeals de novo of final administrative decisions suspending or revoking a person's driving privileges. He argues there was no further administrative remedy, and, therefore, the decision could be appealed de novo pursuant to the subject matter jurisdiction granted in sections 302.530 and 302.535. REVERSED AND REMANDED. Division Two holds: Where a licensee evidences an intent to not abandon the right to an administrative hearing or the right to seek relief from the suspension or revocation of his or her license and instead requests that the matter be submitted on the records, the licensee has successfully exhausted his or her administrative remedies so as to not bar a subsequent petition for a trial de novo. Citation:

Opinion Author: Thomas H. Newton, Judge Opinion Vote: REVERSED AND REMANDED. Ellis and Holliger, J.J., concur. Opinion: Derrick Carr was arrested at 1:50 a.m. on April 21, 2000, for driving while intoxicated (DWI). After a field sobriety test, the arresting officer conducted a breath analyzer test, and the results showed a blood alcohol content of 0.106%. He was issued a notice of suspension of his driver's license on the same date. On April 24, 2000, Mr. Carr through his attorney, Mr. Robert Hiler, requested an "in person" administrative hearing in Independence, and notice was sent on May 19, 2000, informing Mr. Carr of his hearing scheduled for June 6, 2000. On May 24, 2000, Mr. Hiler requested a continuance due to "a number of jury trials coming up on 6-5-00, in the [Circuit Court]." The request for continuance was granted, and notice was sent on June 30, 2000, notifying the parties that the cause was scheduled for 8:30 a.m. on July 19, 2000. On July 6, 2000, Mr. Hiler made a request for a continuance, stating that he had a conflict with a murder trial he was defending. Mr. Hiler received a phone call from the docket clerk informing him that she could not continue the case, so he asked her "to indicate in their file, that in looking over the documents, they ruled against both of the Petitioner's [sic], so that a pleading could be filed in the Circuit Court where the parties were charged with a DWI . . . ."(FN1) The hearing officer entered a default judgment against Mr. Carr when neither he nor his attorney appeared. Mr. Carr thereafter filed an application for a hearing in the Jackson County Circuit Court on August 9, 2000. After a hearing, the circuit court granted the Director's motion to dismiss on September 18, 2000, for lack of subject matter jurisdiction. On appeal, Mr. Carr argues that section 302.530, in combination with section 302.535, empowers circuit courts with subject matter jurisdiction to hear appeals de novo of final administrative decisions suspending or revoking a person's driving privileges, in that the default judgment of July 19, 2000, was a final administrative decision from which there was no further administrative remedy and which could therefore be appealed de novo pursuant to sections 302.530 and 302.535. The appeal raises the same issues as discussed in Christopher R. Hiler v. Director of Revenue, WD 59096, decided this day. For reasons set forth in the accompanying opinion, we reverse the decision of the Jackson County Circuit Court and remand for proceedings not inconsistent with Hiler v. Director of Revenue, WD 59096. Footnotes:

FN1."Petitioner's" is in reference to Mr. Carr as well as Mr. Christopher Hiler. Mr. Robert Hiler also represented Christopher Hiler in Hiler v. Director of Revenue, WD 59096. He handled both cases simultaneously, seeking continuances for the same dates and for the same reasons. As such, when he spoke to the docket clerk, he spoke in reference to both Mr. Carr's and Mr. Hiler's cases. Further, arguments before the circuit court were made with regard to both Mr. Carr and Mr. Hiler. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.