John R. Hagan, Respondent, v. Director of Revenue, State of Missouri, Appellant.

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: John R. Hagan, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: 54021 Handdown Date: 11/04/1997 Appeal From: Circuit Court of Harrison County, Hon. Richard L. Parker Counsel for Appellant: Ronald D. Pridgin Counsel for Respondent: Roy W. Brown Opinion Summary: The Director of Revenue appeals the grant by the Circuit Court of Harrison County of John R. Hagan's "Application for Hardship Driving Privilege," filed pursuant to section 302.309.3(6)(a). The Director contends that the trial court erred in granting respondent's application because it erroneously declared and applied the law in that it lacked authority to grant hardship driving privileges to him because he was ineligible, as a result of a felony driving while intoxicated conviction, under section 302.309.3(5)(b). AFFIRMED. Special Division holds : Sections 302.309.3(5), 302.309.3(6)(a), and 302.060(9) all relate to the suspension and revocation of driving privileges and the procedures that must be followed in order to obtain limited or hardship driving privileges. Thus, they are in pari materia and must be read consistently and harmoniously with each other. The court finds that the subdivisions can be read together consistently and harmonized while still giving effect to the amendment to subdivision (6)(a). The amendment simply limited the use of subdivision (6)(a) to a class of individuals who were not otherwise ineligible under the remaining subsections and subdivisions of section 302.309, independent of the prohibitions of section 302.309.3(5). Unlike the Director's interpretation, which would render the exception in subdivision (6)(a) a nullity because the very class of applicants for which it was drafted to provide relief would be ineligible to use it simply by being a member of that class, the court's

interpretation gives effect to both introductory phrases of amended section 302.309.3(6)(a) and section 302.309.3(5). Citation: Opinion Author: Edwin H. Smith, Presiding Judge Opinion Vote: AFFIRMED. Ulrich, C.J., and Ellis, J., concur. Opinion: The Director of Revenue, the Director, appeals the grant by the Circuit Court of Harrison County of John R. Hagan's "Application for Hardship Driving Privilege," filed pursuant to section 302.309.3(6)(a).(FN1) In her sole point on appeal, the Director contends that the trial court erred in granting respondent's application because it erroneously declared and applied the law in that it lacked authority to grant hardship driving privileges(FN2) to him because he was ineligible, as a result of a felony driving while intoxicated conviction, under section 302.309.3(5)(b) to receive such privileges. We affirm. Facts On June 6, 1990, the respondent, John R. Hagan, pled guilty to a felony charge of driving while intoxicated, section 577.023.3, which was his fifth driving while intoxicated conviction. As a result of this conviction, the Director of Revenue revoked respondent's driver's license for one year. In addition, because respondent had more than two such prior convictions, the Director imposed a ten-year minimum denial on the reissuance of respondent's driving privileges pursuant to section 302.060(9). On January 7, 1997, respondent filed an "Application for Hardship Driving Privilege" pursuant to section 302.309.3. The Director filed her answer thereto on February 5, 1997, objecting to the respondent's application on the grounds that he had a felony driving while intoxicated conviction, and was thus, ineligible pursuant to section 302.309.3(5)(b) to receive limited driving privileges. The trial court heard respondent's application on February 5, 1997, and denied it on February 6, 1997, based upon his felony driving while intoxicated conviction. Respondent filed a motion to set aside judgment on February 11, 1997, which referred the trial court to the holding in Zitzman v. Lohman, 917 S.W.2d 617 (Mo.App. 1996), for the proposition that his felony driving while intoxicated conviction did not disqualify him to receive limited driving privileges under section 302.309.3(5) (b), in that section 302.309.3(6)(a) provided an exception thereto for those applicants with more than two driving

while intoxicated related convictions who have served at least three years of a ten-year minimum denial imposed pursuant to section 302.060(9). On February 14, 1997, the trial court granted respondent's motion and entered judgment for respondent granting him limited driving privileges. On February 24, 1997, the Director filed a motion to set aside the judgment for lack of jurisdiction, asserting that the holding in Zitzman had been overruled by an amendment to section 302.309.3(6)(a); and thus, respondent was ineligible to receive limited driving privileges under section 302.309.3(5)(b). On February 25, 1997, respondent filed a response to the Director's motion to set aside for lack of jurisdiction claiming that the holding in Zitzman remained viable after the 1996 amendment to section 302.309.3(6)(a). On March 4, 1997, the trial court entered its order overruling appellant's motion to set aside stating that it would follow Zitzman until there was a contrary appellate opinion. This appeal follows. Standard of Review Our review of the circuit court's grant of an application for hardship driving privileges pursuant to section 309.302 is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Ezenwa v. Director of Revenue, 791 S.W.2d 854 (Mo.App. 1990). We will affirm the judgment of the trial court unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 856. I. In her sole point on appeal, the Director claims that the trial court erred in granting respondent limited driving privileges under section 302.309.3, in that, it erroneously declared and applied the law. The Director contends that the trial court lacked the authority under section 302.309 to grant limited driving privileges to respondent in that he was not eligible for such privileges pursuant to section 302.309.3(5)(b), because he was previously convicted of a felony in which a motor vehicle was used, specifically felony driving while intoxicated, section 577.023.3. Respondent argues that he was eligible to receive limited driving privileges, in that regardless of the prohibitions of section 302.309.3(5), section 302.309.3(6)(a), as interpreted in Zitzman, 917 S.W.2d 617, provides that a person who is convicted more than twice of violating a law relating to driving while intoxicated, and who cannot obtain a driver's license pursuant to section 302.060(9) for a minimum of ten years, may apply for hardship driving privileges after he or she has served at least three years of such disqualification. Section 302.309.3(6)(a). We agree. Here, the respondent was convicted of felony driving while intoxicated, section 577.023.3, on June 6,

1990, which, as reflected by his Missouri Driving Record, was his fifth driving while intoxicated conviction. Section 302.060(9) provides, inter alia, that the Director shall not issue a license to any person who has been convicted more than twice of violating state law, or a county or municipal ordinance, relating to driving while intoxicated. In accordance with section 302.060.9, respondent was denied driving privileges by the Director. On January 7, 1997, seven years after being denied driving privileges pursuant to section 302.060(9), respondent filed an application for hardship driving privileges pursuant to section 302.309. Section 302.309 provides, inter alia, the procedures which the circuit court must follow in making eligibility determinations in granting or denying hardship driving privileges to an applicant who has had his license either suspended or revoked. In this respect, subdivision (5) of this section provides in pertinent part that: [e]xcept as provided in subdivision (6) of this subsection, no person is eligible to receive hardship driving privilege whose license has been suspended or revoked for the following reasons: (a) A conviction of violating the provisions of section 577.010 or 577.012, RSMo, or any similar provision of any federal or state law, or a municipal or county law where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney and the defendant was represented by or waived the right to an attorney in writing, until the person has completed the first thirty days of a suspension or revocation imposed pursuant to this chapter; (b) A conviction of any felony in the commission of which a motor vehicle was used; (c) Ineligibility for a license because of the provisions of subdivision (1), (2), (4), (5), (6), (7), (8), (9), (10) or (11) of section 302.060. * * * * * * * * * Section 302.309.3(5) (emphasis added). Subdivision (6)(a) provides in pertinent part that: [p]rovided that pursuant to the provisions of this section, the applicant is not otherwise ineligible for a limited driving privilege, a circuit court or the director may, in the manner prescribed in this subsection, allow a person who has had such person's license to operate a motor vehicle revoked where that person cannot obtain a new license for a period of ten years, as prescribed in subsection (9) of section 302.060, to apply for limited driving privileges pursuant to this subsection if such person served at least three years of such disqualification or revocation... Section 302.309(6)(a) (emphasis added). In entering its judgment granting respondent hardship driving privileges, the trial court relied on Zitzman, supra, for the proposition that section 302.309.3(6)(a) is exclusive of, and acts as an exception to the prohibitions of section 302.309.3(5). In Zitzman, the court addressed the precise issue we address here, whether or not an applicant who is otherwise ineligible for hardship driving privileges under section 302.309.3(5) may nevertheless qualify for them under section 302.309.3(6)(a). In this regard, the Zitzman court stated that "the sole issue...is whether the licensee is eligible for a limited driving privilege under section 302.309.3(6)(a), RSMo 1994. If the

provisions of section 302.309.3(6)(a) are exclusive of section302.309.3(5), then he is eligible." Zitzman, 917 S.W.2d at 617. The court held that "...the limitations in subsection .3(5) are independent and not applicable to a request for limited driving privileges offered in .3(6)." Id. In other words, the Zitzman court held that section 302.309.3(6)(a) is exclusive of and an exception to the prohibitions of section 302.309.3(5). Id. at 618. Thus, if Zitzman is still good law, the trial court here was correct in granting hardship driving privileges to respondent. Zitzman was decided on March 5, 1996. Id. at 617. Subsequent to Zitzman, there was an amendment to section 302.309.3(6)(a) which became effective August 28, 1996, and added the introductory phrase, "[p]rovided that pursuant to the provisions of this section, the applicant is not otherwise ineligible for a limited driving privilege." Section 302.309.3(6)(a). The parties agree that the amended version of section 302.309.3(6) (a) applies to this case. However, they disagree as to its effect. The Director contends that Zitzman was overruled by the amendment, and that it makes sections 302.309.3(5) and 302.309.3(6)(a) interdependent, such that, if an applicant is disqualified under section 302.309.3(5), he or she cannot avail himself or herself of the exception in section 302.309.3(6)(a). The respondent argues that after the 1996 amendment, section 302.309.3(6)(a) still remains independent of and an exception to section 302.309.3(5). Thus, the issue for us to determine is whether the 1996 amendment to section 302.309.3(6)(a) rendered it subject to the prohibitions of section 302.309.3(5) and overruled the holding in Zitzman, or whether it remains an independent exception to the prohibitions of section 302.309.3(5). Logically, this requires us to interpret sections 302.309.3(5), 302.309.3(6)(a) and 302.060(9). When interpreting statutes, we must ascertain the legislature's intent from the language used; give effect to that intent if possible; and consider the words used giving them their plain and ordinary meaning. Wilson v. Director of Revenue, 873 S.W.2d 328 (Mo.App. 1994). However, it is necessary to apply rules of statutory construction where the language is unclear and ambiguous as to the legislature's intent, as it is here. Woolridge v. Woolridge, 915 S.W.2d 372, 378 (Mo.App. 1996). One rule of statutory construction is in pari materia. Statutes are in pari materia when they relate to the same matter or subject. The rule of construction in such instances proceeds upon the supposition that the statutes in question are intended to be read consistently and harmoniously in their several parts and provisions. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo.banc 1991). In this respect, sections 302.309.3(5), 302.309.3(6)(a) and 302.060(9) all relate to the suspension and revocation of driving privileges and the procedures which must be followed in order to obtain limited or hardship driving privileges. Thus, they are in pari materia and must be read consistently and harmoniously with each other.

The Director argues that in light of the proximity in time between the date Zitzman was decided and the date the amendment was passed, and because the legislature is deemed to have been aware of Zitzman when it enacted the amendment, Scoggins v. Timmerman, 886 S.W.2d 135, 137 (Mo.App. 1994) (holding that the legislature is presumed to know the state of the law when enacting a statute), the intent of the legislature in amending section 302.309.3(6)(a) was to overrule the holding in Zitzman and prohibit anyone who is ineligible under subdivision (5) to obtain limited driving privileges pursuant to subdivision (6)(a). This argument is without merit. The Director's interpretation of the amendment would require an applicant who attempts to avail himself or herself of the exception provided for in section 302.309.3(6)(a), to not be otherwise ineligible under any of the prohibitions of subdivision (5). This would include not only subdivision (5)(b), concerning ineligibility for hardship driving privileges because of a felony conviction "in the commission of which a motor vehicle was used," which the Director contends would render respondent ineligible for driving privileges here, but also the remaining prohibitions of subdivision 5, which includes (5)(c). Subdivision 5(c) provides that an applicant will be ineligible to receive limited driving privileges if he or she has been deemed ineligible "for a license because of the provisions of subdivision (1), (2), (4), (5), (6), (7), (8), (9), (10) or (11) of section 302.060." However subdivision (6)(a) specifically allows a person who has had his or her driving privileges denied for a period of ten years pursuant to section 302.060(9), and has served at least three years of that denial, to apply for limited driving privileges. Thus, in order for an applicant to avail himself of the exception under subdivision (6)(a), he must, pursuant to its provisions, be ineligible to receive limited driving privileges under section 302.060(9). As such, the Director's proposed interpretation of the amendment would render the exception provided for by subdivision (6)(a) a nullity because the very class of applicants for which it was drafted to provide relief would be ineligible to use it simply by being a member of that class. The Director's interpretation of the amendment to subdivision (6)(a) simply does not allow it to be read consistently and harmonized with the introductory phrase of subdivision (5) without rendering the exception provided for in subdivision (6)(a) a nullity. If the intent of the legislature was to render section 302.309.3(6)(a) a nullity, they would have simply deleted it in the amendment. They did not. The legislature is presumed not to enact meaningless provisions. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo.banc 1992). Thus, if the Director's proposed interpretation is not logical, we must determine the effect of the amendment to subdivision (6)(a), while reading it in pari materia with subdivision (5) and the remainder of section 302.309. We find that the two subdivisions can be read together consistently and

harmonized while still giving effect to the amendment to subdivision (6)(a). By reading amended section 302.309.3(6)(a) in pari materia with the other provisions of section 302.309, including subdivision (5), we find that the amendment simply limited the use of section 302.309.3(6)(a) to a class of individuals who were not otherwise ineligible under the remaining subsections and subdivisions of section 302.309, independent of the prohibitions of section 302.309.3(5). For example, the amendment makes it clear that a person wishing to apply for hardship driving privileges under section 302.309.3(6)(a), must, inter alia, satisfy the requirements found in section 302.309.3(2), which require an applicant for limited driving privileges to show that he or she is required to operate a motor vehicle in connection with one of the stated purposes before he or she is eligible to receive limited driving privileges. Unlike the Director's interpretation, our interpretation gives effect to both introductory phrases of amended section 302.309.3(6)(a) and section 302.309.3(5), and allows them to be read consistently and in harmony with each other. For the foregoing reasons we find that the trial court did not erroneously declare and apply the law in granting respondent hardship driving privileges pursuant to section 302.309.3(6)(a) in that it remains independent of and an exception to section 302.309.3(5). Point denied. Conclusion We affirm the judgment of the trial court granting respondent limited driving privileges pursuant to section 302.309.3(6)(a). Footnotes: FN1. All statutory references are to RSMo 1994, unless otherwise indicated. FN2. For some unexplained reason, section 302.309 refers to both "hardship" and "limited" driving privileges, which are the same. Whether referred to as one or the other, the driving privileges referenced in section 302.309 are the same for purposes of our discussion. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.