Jimmy D. Ballard, 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: Jimmy D. Ballard, Appellant, v. Director of Revenue, Respondent Case Number: WD57804 Handdown Date: 09/12/2000 Appeal From: Circuit Court of Gentry County, Hon. W. Rex Beavers, Judge Counsel for Appellant: Bruce B. Brown Counsel for Respondent: Evan J. Buchheim Opinion Summary: Jimmy D. Ballard appeals the circuit judgment affirming the Director of Revenue's decision suspending his operator's license pursuant to section 302.505.1 for driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more by weight. REVERSED AND REMANDED. Court holds: Ballard claims that the trial court erred in affirming his suspension pursuant to section 302.505.1 because the statute should be interpreted as requiring the Director to prove probable cause to arrest for 21-and-over drivers with a BAC of .10% or more and probable cause to stop for under-21 drivers with a BAC of .02% or more. Thus, age is always a factor. On the other side, the Director argues that the statute creates two separate categories, the first of which is non- age specific and the second of which is only applicable to under-21 drivers who meet certain criteria. Therefore, for all drivers, including under-21 drivers, with a BAC of .10% or more, the Director must prove probable cause to arrest, and for under-21 drivers with a BAC of at least .02%, the Director must prove probable cause to stop. Section 302.505.1 provides in pertinent part that "[t]he department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight . . . 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, 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." In Riche v. Director of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999), the court stated, "If the driver is under twenty-one years of age, the director must prove that the driver was stopped upon probable cause. As to drivers over age 21, such as [the appellant], the director must prove that the driver was arrested upon probable cause. . . . In setting the standards in section 302.505.1, the legislature has chosen to require that the director prove probable cause for the stop of drivers under twenty-one and probable cause for the arrest of drivers over twenty-one." As such, the statute provides mutually exclusive means for suspending or revoking the licenses of 21-and-over drivers and under-21 drivers. Such a reading supports the appellant's interpretation of the statute. Being bound by this interpretation, this court finds that the trial court erred in determining that the Director was not required to show probable cause to stop the appellant in order to make a prima facie case for the suspension of his license and suspending on the basis of probable cause to arrest for DWI. The Director asks the court, should it rule against him on the issue of whether he was required to show probable cause to stop in order to suspend, to reverse and remand for further proceedings to provide him an opportunity to demonstrate the requisite probable cause. However, the Director chose to introduce evidence based on his belief as to correct interpretation of section 302.505.1 rather than introducing evidence that would suffice on either of the two possible interpretations of the statute. As such, the Director did not establish the requisite probable cause to stop sufficient to make a prima facie case for suspension of the appellant's license pursuant to the under-21 provision of section 302.505.1, as interpreted by the supreme court in Riche, requiring reversal. Citation: Opinion Author: Edwin H. Smith, Presiding Judge Opinion Vote: REVERSED AND REMANDED. Ulrich, J., concurs and Ellis, J., concurs in separate opinion. Opinion: Jimmy D. Ballard appeals from the judgment of the circuit court affirming the decision of the Director of Revenue (Director) suspending his operator's license, pursuant to section 302.505.1,(FN1) for driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more by weight.

The appellant raises one point on appeal. He claims that the trial court erred in affirming the administrative suspension of his license because in doing so the court erroneously declared and applied section 302.505.1 in that pursuant to this section, in order to make a prima facie case for suspending his license, the Director was required, but failed, to establish that as an under-21 driver the appellant was stopped upon probable cause to believe that he was driving while intoxicated (DWI), in violation of section 577.010; with an excessive BAC, in violation of section 577.012; or upon probable cause to believe that he had committed a state, county, or municipal traffic offense with a BAC of .02% or more. We reverse and remand. Facts On May 31, 1998, at approximately 1:52 a.m., James R. Burks, a police officer for the City of Albany, Gentry County, Missouri, was exiting the police station when he heard the sound of tires squealing just a block away. Officer Burks observed a red Ford pickup truck, being driven by the appellant, leaving the intersection of Clay and Smith Streets, the direction from which the sound of squealing tires had come. The red pickup was followed by a green and yellow Chevy pickup. As the green and yellow pickup traveled by his location, Officer Burks stopped it and asked the occupants who had been squealing tires. The occupants identified the appellant as the responsible person. Officer Burks then pursued the appellant's vehicle. Within the next five to ten minutes, Officer Burks located appellant's vehicle sitting double-parked on the west side of the square. After driving around the square, Officer Burks pulled up behind the appellant's vehicle, at which point the appellant began driving toward the east side of the square. Officer Burks then activated his patrol vehicle's lights and stopped the appellant's vehicle. Officer Burks informed him that he had been stopped for squealing his tires at the intersection. At this time, Officer Burks noticed an odor of intoxicants coming from the appellant and proceeded to conduct a field sobriety test. Based upon appellant's failure of the field sobriety test, Officer Burks determined that appellant was intoxicated. He placed him under arrest for violating the Albany city ordinance for DWI. After arresting the appellant, Officer Burks transported him to the police station, where he performed a breathalyzer test, which showed the appellant's BAC to be .135%. The appellant was under twenty-one years of age at the time of his arrest. Following his arrest, the Director notified the appellant that his driver's license was suspended pursuant to section 302.505. As a result, the appellant filed a petition for administrative review of his suspension, on which a hearing was held on August 27, 1998. After hearing evidence, the hearing officer rejected the appellant's contention that, in order to

make a prima facie case for suspension under section 302.505.1, the Director had the burden to prove probable cause to stop due to the fact that the appellant was under 21 years of age at the time of his arrest. Instead, the hearing officer found that because the appellant had a BAC of .10% or more, the Director only had to show that there was probable cause to arrest. Finding that the Director had made a prima facie case, based on this interpretation of the statute, and that the appellant had not rebutted the same, the decision of the Director suspending the appellant's license was affirmed. On September 18, 1998, pursuant to section 302.535.1, the appellant filed his petition for a trial de novo in the Circuit Court of Gentry County. The petition was heard on September 20, 1999, by the Honorable William Rex Beavers. At the hearing, the appellant continued to argue that, under the statute, the Director was required to show probable cause to stop, while the Director took the position that the statute treated all drivers with a BAC of .10% or more the same, such that, with respect to the requisite probable cause showing to suspend, he was only required to show probable cause to arrest. The trial court agreed with the Director's position and entered its judgment accordingly, affirming the Director's suspension of the appellant's license. This appeal follows. Standard of Review Our review of the trial court's judgment reinstating the license of the respondent, after it had been suspended for DWI, under section 302.505, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). As such, we must affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Endsley v. Dir. of Revenue, 6 S.W.3d 153, 157 (Mo. App. 1999) (citations omitted). "[W]hen any part of the testimony of a witness can reasonably be viewed as inaccurate or inconsistent, the usual rule attends and we give deference to the trial court in its resolution of all witness credibility questions." Id. at 161. However, "deference to a trial court's findings is not required where none of the evidence is controverted and the case is virtually one of admitted facts or where there is no conflict in the evidence." Hawk v. Dir. of Revenue, 943 S.W.2d 18, 22 (Mo. App. 1997) (citing Reinert v. Dir. of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995)). I. In his sole point on appeal, the appellant claims that the trial court erred in affirming the administrative suspension of his license because in doing so the court erroneously declared and applied section 302.505.1 in that, pursuant to this section, in order to make a prima facie case for suspending his license, the Director was required, but failed, to establish that, as an under-21 driver, the appellant was stopped upon probable cause to believe that he was driving while intoxicated, in violation of section 577.010; with an excessive BAC, in violation of section 577.012; or upon probable

cause to believe that he had committed a state, county, or municipal traffic offense with a BAC of .02% or more. Based on the Missouri Supreme Court's decision in Riche v. Dir. of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999), interpreting the pertinent provisions of section 302.505.1, we would agree. In interpreting statutes, our purpose is to ascertain the intent of the legislature. In doing so, we look to the language used, giving it its plain and ordinary meaning . . . In interpreting a statute, we are required to give meaning to each word, clause, and section of the statute whenever possible. The courts are without authority to read into a statute a legislative intent that is contrary to the intent made evident by giving the language employed in the statute its plain and ordinary meaning. When the legislative intent cannot be ascertained from the language of the statute by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Hunter v. County of Morgan, 12 S.W.3d 749, 757 (Mo. App. 2000) (citations omitted). "When the legislature amends a statute, the amendment is presumed to have some effect." Hagan v. Dir. of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998). Section 302.505.1 provides: The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, 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, 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.(FN2) (Emphasis added.) The under-21 driver provision was added to the statute by the Missouri General Assembly in 1996 as part of its enactment of the "Zero Tolerance Law," Sections 302.500-.545, which was enacted in response to the growing danger posed by under-21 drivers who had consumed any appreciable amount of alcohol. Baldwin v. Dir. of Revenue, No. WD57567, 2000 WL 818908, at *3 (Mo. App. June 27, 2000). Unlike the appellant, the Director asks us to read the statute, as amended, as providing two alternative methods for suspending or revoking the license of an under-21 driver, depending on his or her BAC and whether there was probable cause to stop or probable cause to arrest. Specifically, he contends that the "any person" language of section 302.505.1 indicates a legislative intent that, regardless of the age of the driver, his or her license could be suspended or revoked upon a showing that: (1) the driver was arrested upon probable cause to believe that he or she was driving with a BAC of .10% or more; and (2) at the time of arrest, he or she had a BAC of .10% or more. section 302.505.1; Endsley, 6 S.W.3d at 158. In light of his reading of the any-person provision of the statute, the Director asks us to read the provision referencing under-21 drivers as requiring suspension or revocation upon a determination that: (1) the driver was under 21 at the time of the stop; (2) he or she was stopped upon probable cause to believe that he or she was driving

while intoxicated in violation of section 577.010 or with an excessive blood alcohol content in violation of section 577.012, or upon probable cause to believe that he or she had committed a state, county, or municipal traffic offense; and (3) at the time of the stop, he or she had a BAC of at least .02% but less than .10%. In asking us to interpret and read the subsection in this fashion, the Director relies heavily on the argument that the legislature, in enacting the "Zero Tolerance Law," amending, inter alia, section 302.505.1, the motivation for which was to crack down on under-age drinking and driving, could not have intended to treat under-21 drivers, for purposes of license suspensions and revocations, more favorably after the amendment than before, which would be the case, unless the under-21 provision only applied to under-21 drivers with a BAC of less than .10%. Although we would recognize the apparent logic of this proposition, as we discuss, infra, we never reach it as a consideration as a result of the supreme court's decision in Riche, interpreting the statute. As to the Director's requested interpretation of the statute, we would note initially that the under-21 provision of section 302.505.1 does not provide for a BAC of .02% but less than .10%, as the Director would have us read it. Rather, it expressly provides for a BAC of "two-hundredths of one percent or more." section 302.505.1 (emphasis added). As this court recently decided in Baldwin, wherein the court was called upon to address the required showing under section 302.545 for expunging the traffic record of an under-21 driver whose license had been suspended or revoked under section 302.505.1, the phrase, "two-hundredths of one percent or more," in section 302.505.1 says what it says, two- hundredths or more, and we cannot read it otherwise simply because it does not fit into the Director's view of the statutory scheme of the "Zero Tolerance Law" and the public policy driving its enactment.(FN3) Baldwin, 2000 WL 818908, at *3. In any event, we fail to see how the Director's position, that depending on the BAC of the under-21 driver, there are two alternative methods for suspending or revoking his or her license under section 302.505.1, is contingent on the phrase, "two-hundredths of one percent or more," being read as at least .02% but less than .10%. Reading the statutory phrase in question as it is clearly written, rather than as contended for by the Director, an argument could be made nonetheless, that section 302.505.1 provides for two alternative methods for suspending or revoking an under-21 driver's license where his or her BAC is .10% or more, if the specific probable-cause requirement is met, either probable cause to arrest or probable cause to stop. The statute, as discussed, supra, provides that a driver's license of "any person" shall be suspended or revoked upon a showing of probable cause to arrest and a BAC of .10% or more. Section 302.505.1. "Any person" would logically include under-21 drivers, which without dispute was the law prior to the Zero Tolerance amendment. As such, absent any express language in the statute to the contrary, it would seem that the any-person provision of section 302.505.1 would continue to authorize the Director to suspend or revoke the

license of any person, including an under-21 driver, if there was probable cause to arrest, even if there was no probable cause to stop as required by the under-21 provision, and the driver had a BAC of .10% or more. In addition, it would appear from the language used in the under-21 provision, that in the case of an under-21 driver with a BAC of .10% or more, the Director would also be authorized to suspend or revoke, provided there was the required showing of probable cause to stop. As such, if, in the case of an under-21 driver with a BAC of .10% or more, there was the requisite probable cause to stop and arrest, as set forth in both provisions of the statute, the Director could rely on one or the other, or both, to suspend or revoke. Obviously, in the case of a BAC of less than .10%, the Director could not suspend or revoke the license of any driver, including an under-21 driver, under the any-person provision, but would have to rely on the under-21 provision, based on a determination that the driver: (1) was under twenty-one years of age; (2) was stopped on probable cause to believe he or she was driving while intoxicated or with an excessive BAC, or committed a state, county, or municipal traffic offense; and (3) had a BAC of at least .02%. In any event, the statute, on its face, does not appear to read that the two provisions of section 302.505.1 were meant to be mutually exclusive, based on the driver's age, as the appellant contends. If this were a case of first impression, we would, of course, be free to give whatever interpretation to the statute we felt was warranted, applying the well recognized principals of statutory interpretation, discussed, supra. On the other hand, if, in fact, it were not a case of first impression, but the statute has been interpreted previously by the Missouri Supreme Court in Riche, as the appellant contends, then we would be bound by that interpretation. Trovillion v. Countrywide Funding Corp., 910 S.W.2d 822, 824 (Mo. App. 1995). In Riche, the driver, who was over twenty-one years of age, appealed the judgment of the trial court affirming the suspension of his driver's license under section 302.505.1 for driving with a BAC of .10% or more. On appeal he claimed that the statute was unconstitutional because: (1) it violated his Fourth Amendment right to be free from unreasonable searches and seizures in that it did not require the Director to establish probable cause to stop; and (2) it violated his right to equal protection in that, as to under-21 drivers, but not 21-and-over drivers, it required the Director to establish probable cause to stop. Riche, 987 S.W.2d at 333-36. In finding that there was no equal protection violation, the court stated: "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." Id. at 337. Of course, this would be true only if the BAC of the under-21 driver in question was less than .10%. Otherwise, if the under-21 driver's BAC was .10% or more, the same BAC standard by which the statute determines license suspensions and revocations of 21-and-over drivers, the rational basis cited by the Riche court for the statute's

preferential treatment of under-21 drivers, would not apply. This would lead us to believe that the supreme court was either interpreting the under-21 provision of the statute the same as the Director, as only applying where the driver's BAC was at least .02%, but less than .10% or was interpreting section 302.505.1 as providing for two alternatives for suspending or revoking the license of an under-21 driver who had a BAC of .10% or more, which we discussed, supra. As to the first possibility, however, as previously noted, the under-21 provision of the statute expressly provides for a BAC of .02% or more, which would logically include a BAC of .10% or more, as noted in Baldwin. Despite the fact that the rationale given by the Riche court, in finding no equal protection violation, appears to be in keeping with either the alternative method interpretation or the Director's interpretation of section 302.505.1, it appears that the court's express statement as to its interpretation of section 302.505.1 is in keeping with the appellant's position. In this regard, the court stated: If the driver is under twenty-one years of age, the director must prove that the driver was stopped upon probable cause. As to drivers over age 21, such as [the appellant], the director must prove that the driver was arrested upon probable cause. . . . In setting the standards in section 302.505.1, the legislature has chosen to require that the director prove probable cause for the stop of drivers under twenty-one and probable cause for the arrest of drivers over twenty-one. Riche, 987 S.W.2d at 336. It is impossible, in our view, for the Director to argue around the fact that the supreme court held that, in the case of an under-21 driver, the Director "must" prove probable cause to stop, and that the probable cause to arrest requirement only applies to "drivers over twenty-one."(FN4) As such, we read this language from the case as an expression by the supreme court that the statute is to be interpreted as providing mutually exclusive means for suspending or revoking the licenses of 21-and-over drivers and under-21 drivers. Being bound by this interpretation of the statute by the supreme court, Trovillion, 910 S.W.2d at 824, regardless of its apparent conflict with the court's rationale for not finding an equal protection violation, we necessarily must find that the trial court here erred in determining that the Director was not required to show probable cause to stop the appellant in order to make a prima facie case for suspending his license upon a showing by the Director of probable cause to arrest for DWI. The Director asks us, should we rule against him on the issue of whether he was required to show probable cause to stop in order to suspend, as we do, to reverse and remand for further proceedings to provide him an opportunity to demonstrate the requisite probable cause. However, we fail to see on what basis the Director would be entitled to a further hearing where he chose to introduce evidence based on his belief as to the correct interpretation of section

302.505.1 with respect to the requisite probable cause showing to suspend or revoke, rather than introducing evidence that would suffice on either of the two possible interpretations of the statute. As to any evidentiary basis for establishing the requisite probable cause to stop, the Director candidly admits in his brief that the only basis would be probable cause to stop for a municipal traffic offense, either for squealing tires or for double-parking. The problem with relying on this as a basis for making a prima facie case for suspension is the fact that the Director did not prove up at the trial the municipal ordinance or ordinances, on which he was relying to establish probable cause to stop, by introducing a copy of the same. See City of Kansas City v. Mullen, 690 S.W.2d 421, 422 (Mo. App. 1985). Neither a trial court nor an appellate court can take judicial notice of a municipal ordinance. Id. As such, we find that the Director did not establish the requisite probable cause to stop sufficient to make a prima facie case for suspension of the appellant's license pursuant to the under-21 provision of section 302.505.1, as interpreted by the supreme court in Riche, requiring us to reverse. Appellant's Motion for Attorney's Fees The appellant filed a motion requesting attorney's fees, section 302.536, should he prevail on appeal, which was taken with the case. Because we reverse and remand for the circuit court to enter its judgment ordering the reinstatement of the appellant's license, we direct the court to consider and rule on the appellant's motion. Conclusion The judgment of the trial court affirming the Director's suspension of the appellant's driver's license, pursuant to section 302.505.1, is reversed and the cause remanded to the circuit court with directions to enter its judgment reinstating the appellant's driver's license and considering the appellant's motion for attorney's fees. Footnotes: FN1.All statutory references are to RSMo Supp. 1996, unless otherwise indicated. FN2.Obviously, a driver cannot have "violated a . . . traffic offense," as the statute reads. We assume the legislature intended it to read that the driver "committed a state, county or municipal traffic offense." FN3.We would note that, although both section 302.505.1, concerning suspensions and revocations, and section 302.541.2, concerning the required reinstatement fee and the filing of proof of financial responsibility, contain the phrase, "two-hundredths of one percent or more" (emphasis added), the statute that the court was called upon to interpret in Baldwin, section 302.545, does not contain this phrase. Rather, it reads simply "two-hundredths of one percent," leaving out the "or more" language. section 302.545.1. This fact, however, does not affect our decision in this case. FN4.Although the opinion only speaks to drivers "under" and "over" twenty-one years of age, which would ignore drivers who are twenty-one, the statute refers to those drivers under twenty-one and those twenty-one and over. As such, we conclude that the court would include 21-year-old drivers in the 21-and-over category. Separate Opinion:

302.505.1 and our Supreme Court's decision in Riche v. Director of Revenue, 987 S.W.2d 331 (Mo. banc 1999). In Riche, as the majority notes, the Supreme Court found the statute to be clear and construction or interpretation unnecessary: If the driver is under twenty-one years of age, the director must prove that the driver was stopped upon probable cause. As to drivers over age 21, such as [the appellant], the director must prove that the driver was arrested upon probable cause. * * * In setting the standards in section 302.505.1, the legislature has chosen to require that the director prove probable cause for the stop of drivers under twenty-one and probable cause for the arrest of drivers over twenty-one. Id. at 336 (emphasis added). This should end the discussion. However, the majority chooses to wander off into the murky swamp of obiter dictum.(FN1) I decline to join in those meanderings through the dense fog and black, stagnant water of that judicial bog. (FN2) The statute is clear, and our Supreme Court has decided the issue. There is no question of first impression. The Director's argument that the statute provides for two alternative methods of suspending or revoking the license of an under-21 driver where his or her BAC is .10% or more is unsupportable and fails.

appellant's driver's license and for consideration of appellant's motion for attorney's fees. Footnotes: FN1.I am once again reminded of the definition used by the Missouri Supreme Court in Muench v. South Side Nat. Bank, 251 S.W.2d 1 (Mo. 1952): "An obiter dictum, in the language of the law, is a gratuitous opinion -- an individual impertinence -- which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it." Hart v. Stribling, 25 Fla. 433, 435, 6 So. 455. Or as classically expressed by Judge Caskie Collet, it is "'[t]hat useless chatter of judges, indulged in for reasons known only to them, to be printed at public expense.'" United States v. Certain Land in City of St. Louis, D.C., 29 F.Supp. 92, loc. Cit. 95. Id. at 6. FN2."Judicial opinions are meant to resolve legal disputes. Therefore, an appellate court does not decide and should suppress its instructive instincts and not discuss issues which are irrelevant and unimportant to resolution of the legal dispute presented." Coalition to Preserve Education On the Westside v. School District Of Kansas City, 649 S.W.2d 533, 536 (Mo. App. W.D. 1983). This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.