PRESS RELEASE:

EVERY MISSOURI LICENSE HOLDER BEWARE!

In a precedent setting decision, the Missouri Court of Appeals, Eastern District, has endorsed the retroactive application of a Missouri license sanctioning statute placing every resident license holder at risk of future sanctions occasioned by reason of prior traffic offenses.

On July 10, the Eastern District announced its decision in Pearson v. Director, ED88625. Pearson, a Missouri CDL holder, was convicted in Illinois in February, 2002, of driving a commercial vehicle while suspended. In December, 2005, the Missouri Department of Revenue notified Petitioner that his CDL privileges would be suspended for one year pursuant to Sections 302.700 and 302.787 as a consequence of this 2002 conviction.

Pearson judicially challenged the Director's actions, noting that at the time of his conviction, no authority for the proffered sanction (CDL denial) existed. Pearson argued that subsequent changes in the law effective September 2005 could not, consistent with principles of constitutional law, be retroactively applied to events which had occurred three years prior. The trial court agreed, and enjoined the threatened sanction. The Director appealed.

In an opinion reversing the trial court's decision, the Eastern District acknowledged that prior to September of 2005, Section 302.755 did not occasion a CDL disqualification to one convicted of a first violation of driving a commercial motor vehicle while revoked. It was only by reason of the subsequent amendment of the aforesaid statute that the Director could seek the threatened sanction. Thus, the Court considered the issue to be "whether the legislature's subsequent amendment of Section 302.755 can be applied retroactively to make that conviction disqualifying."

While Article I, Section 13 of the Missouri Constitution prohibits the enactment of any law "retrospective in its operation," the Court held that a retrospective law is limited to one which "creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or consideration already past." As interpreted by the Eastern District, the sanction of Section 302.755 created no new obligation, imposed no new duty, nor did it attach any new disability with respect to a transaction or consideration already past. The Court reasoned that since a CDL is a privilege, not a right, Pearson had no protected interest to preclude the retrospective application of this statutory enactment.

While the Courts have often referred to a drivers license as a "privilege," and not a right, it is clear that the Due Process Clause applies to the deprivation of a driver's license by the State. In Bell v. Burson 402 U.S. 535, 539, 91 S.Ct. 1586, 1589 (U.S.1971), the U.S. Supreme Court held that "(o)nce licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment... (t)his is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a "right" or a "privilege." Id. Indeed, Missouri's own Supreme Court has recognized that an individual has a "liberty" or "property" interest in a driver's license, and that due process imposes constraints on governmental decisions which may deprive an individual of that interest. Dabin v. Director of Revenue, 9 S.W.3d 610 (Mo. 2000). Certainly, the continued possession of a CDL is essential, and perhaps a necessary prerequisite, to the holder's pursuit of a livelihood. Unfortunately, the Pearson opinion overlooks the significant due process interest that a motorist has in a driver's license.

The most immediate impact of the Pearson decision is that the Director can now administratively suspend or revoke every CDL holder in the State who has ever committed any disqualifying offense in the past, no matter how long ago, even if those offenses were committed while driving a non-commercial motor vehicle. This is because the 2005 amendments authorize the Director to administratively sanction a CDL license holder for disqualifying offenses committed in a non-commercial vehicle. For example, John Smith may have obtained a DWI conviction for driving his Volkswagon while attending college in Columbia in 1972. Under Pearson, there is absolutely nothing to prevent the Director from now taking away Mr. Smith's CDL for one year because of that past conviction. If Mr. Smith happened to have had too much fun in college, and got convicted of two alcohol related offenses instead of one, under Pearson, the Director can now take action to deny Mr. Smith's CDL for life, even though he may have had a perfect driving record since 1972. [1] In short, the families of thousands of CDL holders in this state are now at risk of losing everything should the Director apply the Pearson case, and retroactively sanction CDL holders for past offenses committed in non-commercial vehicles.

Equally significant is the precedent the opinion establishes for license holders of all types.

For example, if this opinion remains as published, it will allow the legislature to retroactively sanction innumerable "privileges" and render the legal practitioner incapable of providing clientele with an informed analysis of the consequences of a proffered disposition. A simple illustration is indicative of the quagmire: Assume your client is cited for speeding in violation of state law. Under current law, upon conviction three points will assessed. Such assessment, in and of itself, would occasion no sanction to a Class F operator's license. Assume three years hence, the General Assembly elects to make any speeding conviction the basis for a six month suspension of a Class F operator's license. Under the authority of Pearson, the Department of Revenue could now sanction client's privilege in accordance with the 2010 legislation.

With such possibilities now realities by reason of this decision, can one EVER provide competent legal advice when retroactive application is judicially sanctioned? The precedent is not limited to driving privileges alone , but arguably applies to any state issued privilege, including one's ability to practice law. The possible ramifications of the Pearson decision are startling and unpredictable. It is hoped the Eastern District will revisit the significance of its holding when entertaining the signatory counsel's Motion for Rehearing.

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[1] Vice President Dick Cheney reportedly had two DWI convictions when he was a young man. If he had been a truck driver, instead of our Vice President, based upon the Pearson decision, he would now be subject to a lifetime disqualification of his CDL because of his past indiscretions. There is absolutely nothing in the federal regulations or federal legislative history that suggests that Congress ever intended that the States implement the required (i.e., if you want the highway money) changes to the CDL law, and then apply those changes retroactively. If allowed to stand by the Missouri Supreme Court, the Pearson case will quite possibly make its way all the way up to the United States Supreme Court for a decision. Too many families will otherwise be adversely affected by the Pearson decision.