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Missouri Court of Appeals

Southern District

Division Two

ALLAN WILLIAM WELCH, )

)

Petitioner-Respondent, )

)

vs. ) No. SD33344

)

DIRECTOR OF REVENUE, ) Filed July 31, 2015

)

Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY

Honorable Ewing Mitchell Hough, Circuit Judge

AFFIRMED

Director of Revenue (“Director”) appeals from the trial court’s judgment reinstating the 

driving privileges of Allan William Welch. In two separate but related points, Director argues 

that the trial court erred in reinstating Welch’s driving privileges because (1) the trial court failed 

to evaluate Welch’s criminal history and (2) Welch’s alleged 2005 chemical refusal revocation 

made him ineligible for reinstatement. Finding no merit in either of Director’s points, we affirm 

the trial court’s judgment.

Factual and Procedural Background

On July 2, 2002, Director suspended the driving privileges of Welch for a ten-year period 

due to Welch’s multiple convictions relating to driving while intoxicated. On March 13, 2013, 

Welch filed an application for reinstatement of his driving privileges, as provided in section 
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302.060.1(9),1 alleging that the ten-year suspension of his driving privileges had expired and he

was eligible to apply to have his driving privileges reinstated.

Director moved to dismiss Welch’s application, contending that Welch was statutorily 

ineligible for reinstatement of his driving privileges, in that Welch had an “alcohol-related 

enforcement contact as defined in section 302.525 during the preceding ten years, to wit: a 

Chemical Refusal Revocation on August 23, 2005.” Attached to the motion to dismiss, Director 

submitted Exhibit A, which included a “Certification Pursuant to §302.312, RSMo[,]” certifying 

that the records constituting Exhibit A “are true and accurate copies of papers, documents, and 

records lawfully deposited or filed in the offices of the Missouri Department of Revenue[,]” and 

Welch’s Missouri Driver Record, dated March 21, 2013, which revealed a “Chemical Refusal 

 1 References to section 302.060.1(9) are to RSMo Cum.Supp. 2012. As relevant here, section 302.060.1(9) 

provides:

1. The director shall not issue any license and shall immediately deny any driving privilege:

* * * *

(9) To any person who has been convicted more than twice of violating state law, or a 

county or municipal ordinance where the defendant was represented by or waived the right to an 

attorney in writing, relating to driving while intoxicated; except that, after the expiration of ten 

years from the date of conviction of the last offense of violating such law or ordinance relating to 

driving while intoxicated, a person who was so convicted may petition the circuit court of the 

county in which such last conviction was rendered and the court shall review the person’s habits 

and conduct since such conviction, including the results of a criminal history check as defined in 

section 302.010. If the court finds that the petitioner has not been convicted, pled guilty to or been 

found guilty of, and has no pending charges for any offense related to alcohol, controlled 

substances or drugs and has no other alcohol-related enforcement contacts as defined in section 

302.525 during the preceding ten years and that the petitioner’s habits and conduct show such 

petitioner to no longer pose a threat to the public safety of this state, the court may order the 

director to issue a license to the petitioner if the petitioner is otherwise qualified pursuant to the 

provisions of sections 302.010 to 302.540. No person may obtain a license pursuant to the 

provisions of this subdivision through court action more than one time.

(Emphasis added.) “Alcohol-related enforcement contacts” include:

any suspension or revocation under section 302.500 to 302.540, any suspension or revocation 

entered in this or any other state for a refusal to submit to chemical testing under an implied 

consent law, and any conviction in this or any other state for a violation which involves driving 

while intoxicated, driving while under the influence of drugs or alcohol, or driving a vehicle while 

having an unlawful alcohol concentration.

Section 302.525.3, RSMo Cum.Supp. 2012.
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Revocation effective on 9-07-2005[,]” resulting from an offense that occurred on August 23, 

2005. This entry also states “Action is Stayed Appealed as of 9-07-2005[.]” In his written 

response to Director’s allegation that Welch had an alcohol-related enforcement contact on 

August 23, 2005, Welch stated, “said alleged contact has never been adjudicated administratively 

as to its validity since said action has been stayed.”

The parties appeared for hearing and, in addition to Exhibit A, Director offered into 

evidence Exhibit B, “a new driving record” with the stay removed, along with the oral 

explanation by Director’s counsel that the stay order noted in Exhibit A related to the chemical 

refusal revocation was a “computer error” and the stay should have been applied to Welch’s 

application for limited driving privileges in another county rather than the chemical refusal 

action. Both parties conceded that Welch had “not been convicted, pled guilty, or found guilty 

of and there are no pending charges of any offense related to alcohol[,]” and the point of 

contention during the hearing was whether Director’s evidence established an alcohol-related 

enforcement contact as defined in section 302.525.

Welch testified that he had not been convicted of any alcohol, controlled substance, or 

drug-related offenses during the preceding ten-year period; he had been married for three years,

had two children, and had attended church for nine years. Welch stated he volunteered his time 

doing construction work for people in need, helped with vacation bible school, and coached his 

children in baseball, soccer, and basketball. For the preceding seven years, Welch owned a 

successful contracting and remodeling business. He also testified that he attended Alcoholics 

Anonymous, participated in substance-abuse counseling, and sponsors other gentlemen 

struggling with alcoholism. On cross-examination, Welch testified he was arrested by Joplin 

Police Department on August 5, 2005, that he refused the chemical test, and he was charged in 
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Jasper County for felony driving while intoxicated. That charge was reduced to a “careless and 

imprudent driving” misdemeanor. Welch did not recall filing a petition for review on the 

chemical refusal. At the time of the hearing, Welch did not drive and rode with an employee to 

and from work. 

The trial court concluded that “Welch has not been convicted of any offenses related to 

alcohol, controlled substances, or drugs, and that his current habits and conduct reveal that he no 

longer poses [a] threat to the public safety, nor to the citizens of the State of Missouri[,]” and 

“that Welch has completed all requirements for reinstatement and is now therefore eligible for 

reinstatement.” The trial court admitted both Exhibits A and B into evidence, but expressly 

found that it “disbelieve[d] the evidence presented by Exhibit B” and “d[id] not find it credible.” 

The trial court further explicitly found that Director’s “exhibits lack in credibility to deny 

Welch’s statutory eligibility for reinstatement.” Director filed a Motion to Amend the Order 

asking the court to denominate its order as a judgment. In response, the trial court ordered that 

its earlier decision be “entered as Final Order and Judgment,” thereby ordering that “the 

Missouri Department of Revenue administer the written and skills driving test to Welch.” 

Director timely appeals.2

Standard of Review

On appeal, “the trial court’s judgment will be affirmed 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.” White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “In 

reviewing a particular issue that is contested, the nature of the appellate court’s review is directed 

 2 Petitioner did not file a responsive brief in this matter. “‘While there is no penalty for that omission, it requires 

this court to adjudicate [an appellant’s] claims of error without the benefit of whatever argument, if any, [the 

respondent] could have made in response.’” White v. Dir. of Revenue, 255 S.W.3d 571, 576 n.4 (Mo.App. 2008) 

(quoting In re Estate of Klaas, 8 S.W.3d 906, 908 (Mo.App. 2000)).
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by whether the matter contested is a question of fact or law.” Id. at 308. “When evidence is 

contested by disputing a fact in any manner, this [c]ourt defers to the trial court’s determination 

of credibility.” Id. Trial courts are free to disbelieve any, all, or none of the evidence. Id.

Questions of law are reviewed de novo. Id. 

Discussion

In the first point relied on, Director contends

[t]he trial court erred as a matter of law in reinstating [Welch’s] driving 

privileges, because a driver is statutorily ineligible for license reinstatement from 

a minimum ten-year license denial unless he shows that he has no alcohol-related 

enforcement contacts as defined in section 302.525 during the preceding ten years 

and the court evaluates the results of his criminal history check, in that, [Welch] 

has a chemical refusal revocation effective September 07, 2005, and the trial court 

did not evaluate [Welch’s] criminal history check.

In the proceedings in the trial court below, Director never raised any issue regarding the 

trial court’s failure to evaluate Welch’s criminal history check. “Appellate courts are merely 

courts of review for trial errors, and there can be no review of a matter which has not been 

presented to or expressly decided by the trial court.” Robbins v. Robbins, 328 S.W.2d 552, 555 

(Mo. 1959) (internal quotations and citation omitted).

“‘An issue that was never presented to or decided by the trial court is not 

preserved for appellate review.’” Brown v. Brown, 423 S.W.3d 784, 788 (Mo. 

banc 2014) (quoting State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 

129 (Mo. banc 2000)). As required by rule 78.09, the trial court must be given the 

opportunity to rule on a question.[] Brown, 423 S.W.3d at 787. Adherence to this 

rule assists in resolving any alleged error at the earliest possible opportunity by 

“allowing the trial court to rule intelligently.” Id. at 787-88. It is a critical 

component in the efficient and timely resolution of disputes and the conservation 

of the parties’ and the courts’ limited resources. Id. at 788.

In re Marriage of Harris, 446 S.W.3d 320, 324 (Mo.App. 2014). This allegation of error will 

not be addressed on appeal because it is not preserved for review, in that Director did not first 

present the issue to the trial court to afford the trial court an opportunity to rule. 
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The remaining allegation of error raised by Director in the first point relied on is echoed 

in the second point, wherein Director claims

[t]he trial court misinterpreted and misapplied the law in reinstating [Welch] from 

his minimum ten-year license denial, because, under the plain language of section 

302.060.1(9), RSMo, a driver is statutorily ineligible for license reinstatement 

from a minimum ten-year denial if the driver has an alcohol-related enforcement 

contact as defined in section 302.525 during the preceding ten years, in that 

[Welch’s] driving record shows he has a chemical refusal revocation effective 

September 07, 2005.

Both of Director’s points claim that the trial court erred as a matter of law or misapplied 

or misinterpreted the law in reinstating Welch’s driving privilege because Welch had, and his 

driving record shows he has, a chemical refusal revocation effective September 7, 2005. 

Director’s claim of legal error, therefore, is premised upon the fact that Welch had a chemical 

refusal revocation effective September 7, 2005. The only evidence in the record supporting the 

existence of that fact is Director’s Exhibit B that the trial court determined was not credible.

Section 302.060.1(9) provides that Welch may petition the circuit court for reinstatement 

of driving privileges, “and the court may order the director to issue a license” if Welch is 

otherwise qualified and 

has not been convicted, pled guilty to or been found guilty of, and has no pending 

charges for any offense related to alcohol, controlled substances or drugs and has 

no other alcohol-related enforcement contacts as defined in section 302.525

during the preceding ten years and that the Welch’s habits and conduct show such 

Welch to no longer pose a threat to the public safety of this state[.]

Director initially proffered Exhibit A, consisting of Welch’s March 21, 2013 driver 

record, to dispute Welch’s claim. In reference to an alleged chemical refusal revocation, Exhibit 

A showed only that that issue was stayed pending appeal. Exhibit A showed no adjudication on 

this issue. Director next offered Exhibit B, purportedly a revised and accurate April 23, 2013 

driver record that contained no reference to any issue that had been stayed pending appeal. 

However, it is clearly apparent that the trial court had serious concerns about the veracity of 
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Exhibit B. Throughout the transcript, the trial court questioned the procedure employed by 

Director in changing Welch’s Missouri Driver Record, as well as the impact upon the

proceedings at hand, stating, for example: 

I said before and I say again I’m very concerned about the Director’s ability to 

walk across the hall and get a certified record different from the certified record 

they got the first time without anything in that second record to reflect the basis of 

that change, other than the good faith statements of [Director’s counsel], which I 

have no reason to disbelieve, but – but they’re not evidence. They don’t –

[Director’s counsel’s] statements of explanation don’t fall under 312. It is not 

certified by the Director.”

In the end, the trial court determined that both exhibits “lack in [credibility] to deny Welch’s 

[eligibility] for reinstatement[,]” and that both “are inconsistent and that the credibility of Exhibit 

B is put in question.” 

Section 302.312, RSMo 2000, “authorizes the admission of the director’s records in

evidence in court,” Doughty v. Director of Revenue, 387 S.W.3d 383, 386 (Mo. banc 2013),

when “properly certified by the appropriate custodian or the director[,]” Section 302.312. The 

trial court, however, is free to disbelieve any, all, or none of the evidence presented by Director. 

Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012). Because Director’s claim of legal error 

is factually premised upon the veracity of Exhibit B, the trial court’s determination that it was 

not credible forecloses any further consideration of the claim. See Snelling v. Segbers, 450 

S.W.3d 493, 496 n.2 (Mo.App. 2014) (“Credibility determinations by the finder of fact are not 

subject to review by this Court.”). Points 1 and 2 are denied.

Decision

The trial court’s judgment is affirmed.

GARY W. LYNCH, J. – Opinion author

MARY W. SHEFFIELD, P.J. – concurs
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DON E. BURRELL, J. – concurs