Opinion 148
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-1.1 Compliance with the Law; 2-2.4 External Influences on Judicial Conduct; and 2-2.5 Competence, Diligence and Cooperation.)
Issue:
May a judge ethically grant hardship driving privileges to an applicant who has been convicted twice within a five year period of violating the provisions of Section 577.010, RSMo when such a grant violates the meaning of statute and case authority?
Discussion:
V.A. M.S. Section 302.309.3 (5) provides:
Section 577.010.1, RSMo, 1986 provides:
The Missouri Court of Appeals, Western District has held that drivers convicted of driving while intoxicated twice within five years are ineligible for hardship driving privileges for a period of five years dating from the second conviction. Eccarius v. Dir. of Revenue, 774 S.W. 2d 574, 575-76 (Mo.App. l989). Additionally, the Supreme Court has reviewed several cases wherein the trial court failed to apply the clear meaning of V.A.M.S. 302.309.3(5). In Munson v. Dir. of Revenue, No. 72043 (Mo. banc, 1990), the Supreme Court dismissed the appeal of the Director of Revenue when the trial court failed to follow the clear meaning of the limited privilege statute. The Court held:
The dissenting opinion of Chief Justice Charles Blackmar states that "Several circuit courts have flaunted that policy” which denies hardship driving privileges to repeat offenders.
Supreme Court Rule 2, Canon 3A requires that:
While the Commission is cognizant of the fact that judges make errors, and a simple error is not a violation of the Canons, the questions currently before the Commission rises above the level of innocent error.
In the opinion of the Commission, after the Eccarius and Munson cases, the question of whether repeat DWI offenders are not eligible for limited driving privilege has been resolved. Henceforth, the Commission will consider judicial decisions which intentionally and clearly violate the authority of the Eccarius v. Dir. of Revenue, Munson v. Director of Revenue and V.A.M.S. 302.309.3 to be lack of judicative responsibility.
(Dated: April 10, 1990)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 148
Issue:
May a judge ethically grant hardship driving privileges to an applicant who has been convicted twice within a five year period of violating the provisions of Section 577.010, RSMo when such a grant violates the meaning of statute and case authority?
Discussion:
V.A. M.S. Section 302.309.3 (5) provides:
No person is eligible to receive hardship driving privileges whose license has been suspended or revoked for the following reasons:
a) Who has been convicted ... twice within a five year period of violating the provisions of Section 577.010, RSMo. The director shall not issue a license to such person for five years from the date such person was convicted for violating the provisions of Section 577.010 RSMo ...”
Section 577.010.1, RSMo, 1986 provides:
A person commits the crime of "driving while intoxicated" if he operates a motor vehicle while in an intoxicated or drugged condition.
The Missouri Court of Appeals, Western District has held that drivers convicted of driving while intoxicated twice within five years are ineligible for hardship driving privileges for a period of five years dating from the second conviction. Eccarius v. Dir. of Revenue, 774 S.W. 2d 574, 575-76 (Mo.App. l989). Additionally, the Supreme Court has reviewed several cases wherein the trial court failed to apply the clear meaning of V.A.M.S. 302.309.3(5). In Munson v. Dir. of Revenue, No. 72043 (Mo. banc, 1990), the Supreme Court dismissed the appeal of the Director of Revenue when the trial court failed to follow the clear meaning of the limited privilege statute. The Court held:
In sum, the legislature plainly provided for an ex parte proceeding and assumed the trial court would correctly apply the law to the facts disclosed by the driving record. The legislature curiously failed to make provisions for review in the circumstances in which the trial court fails to do so. While tempted to reach the Director’s preferred results and to avoid holding in which a trial court’s error is unreviewable, it is not within the Court’s province to confer the rights to appeal. That must be left to the legislature.
Id. at p. 7.The dissenting opinion of Chief Justice Charles Blackmar states that "Several circuit courts have flaunted that policy” which denies hardship driving privileges to repeat offenders.
Supreme Court Rule 2, Canon 3A requires that:
A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.
While the Commission is cognizant of the fact that judges make errors, and a simple error is not a violation of the Canons, the questions currently before the Commission rises above the level of innocent error.
In the opinion of the Commission, after the Eccarius and Munson cases, the question of whether repeat DWI offenders are not eligible for limited driving privilege has been resolved. Henceforth, the Commission will consider judicial decisions which intentionally and clearly violate the authority of the Eccarius v. Dir. of Revenue, Munson v. Director of Revenue and V.A.M.S. 302.309.3 to be lack of judicative responsibility.
(Dated: April 10, 1990)