Joplin MO Criminal Defense Lawyer Blog

Case Law Update - Commercial Drivers' License

Recently the Eastern District of the Missouri Court of Appeals decided that sections 302.700 through 302.755, RSMo, do not violate the Missouri Constitution's prohibition on retrospective application of a law.  In Pearson v. Director of Revenue, Pearson, who held a commercial drivers' license, was convicted in Illinois in 2002 of driving while his license was suspended or revoked. He was driving a commercial vehicle at the time.   In December of 2005 Pearson received a notice from the Missouri Department of Revenue notifying him that because of his 2002 conviction of driving while license suspended or revoked, he would have his commercial license suspended for 1 year.  Pearson filed a petition for review and the trial court reinstated his license because sections 302.700 through 302.755 did not go into effect until September 30, 2005 and was not a disqualifying event at the time the conviction arose.  The Director of Revenue appealed the trial court's decision.

Article I, Section 13 of the Missouri Constitution prohibits the enactment of any law that is retrospective in its operation.  Laws that create a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past are retrospective in operation.  Because a drivers' license is not a vested right but a privilege, the statutes do not take away a vested right.

The Eastern District reversed and remanded the trial court's decision to reinstate Pearson's license.  It found the the sections applicable in Pearson's case, did not create any new duties on Pearson, only used his past conduct to determine future decision-making by the Department of Revenue.

This is another example of how your past conduct can come up to haunt you in your future. 

Source:  Pearson v. Director of Revenue, ED88625, 07/10/2007.

Missouri's Sex Offender Registration Act (Megan's Law)

I'm a criminal defense attorney.  However, there are some cases that I choose not to take.  One type of case I will not take is child abuse - whether physical or sexual.  To me, there is no excuse for abusing a child.  I will defend a person accused of murder, drugs, etc., but not abusing a child.  I know that everyone deserves to be represented by an attorney.  I support that but I also know that I will not be that attorney.  Why?  Because the defendant deserves the best representation he or she can receive.  I am not that attorney because of my feelings on the subject.   

With that stated, I want to get to the subject of this post - Missouri's Sex Offender Registration Act (SORA), also known as Megan's Law.    This is the law that requires certain sexual offenders to register with the chief law enforcement official (usually the sheriff)  in the county where the offender resides. These offenders include any person who has been convicted or pled guilty to a felony offense under chapter 566, including sexual trafficking of a child and sexual trafficking of a child under 12, and any offense under chapter 566 where the victim was a minor.  The offender has to fill out a form that has been designed by the Missouri State Highway Patrol.  This information is then sent by the chief law enforcement official to the Missouri State Highway Patrol where the information is put into the Missouri Uniform Law Enforcement System  (MULES) to be viewed by other law enforcement officials and prosecuting attorneys.   Some of this information is also posted online and made available to the general public.  The public can look to see whether a certain individual may be a sex offender or if there are sex offenders living in a certain area.  I admit, I have looked to see whether there are sex offenders living near my residence.  Thankfully I found none.

In most circumstances the sex offender must register for his or her lifetime.  However, under the statute (section 589.400) there are certain offenses  that allow for the offender to petition the court for removal from the registration requirements.  These include those who were convicted of promoting prostitution in the 2nd and 3rd degree, public display of explicit sexual material, statutory rape in the 2nd degree, and no physical force or threat of physical force was used.  Those convicted of these offenses may petition the court after 10 years to be removed from the registration requirements.  Also, those who were 19 years of age or younger and the victim was 13 years of age or older may petition the court after 2 years.  All who petition the court have to prove  that they fall into one of the categories that allow the petition, that they have complied with the provisions of the statute, and they are not a current or potential threat to public safety.  If the offender cannot prove these elements, the offender is not entitled to the removal.  And, even if the offender does prove these elements, the court does not have to grant the removal.  If the court denies the removal, the offender must wait for twelve months before petitioning the court again.

Why is this on my mind?    I have recently had to do research on this matter in order to keep an offender from being removed from the registration requirement.   The removal from the registration requirement is a civil matter and  I was hired to defend the registration.   This offender pled guilty to the class D felony of sexual abuse with a child, his child,  who was 6 years old at the time.  I do not want this man released from the requirement to register for the remainder of his life.  At this time the court hasn't made a ruling.  I will keep you posted.

Case Review - Retroactive Application of Section 211.038 (Cum. Supp. 2004)

Recently a case that involved  section 211.038 (Cum. Supp. 2004) was transferred to the Missouri Supreme Court to decide the issue of whether this statute should be applied retroactively.  In In the Interest of A.S.W. the Eastern District of the Missouri Court of Appeals decided that the general interest and the importance of this question should be decided by the Supreme Court of Missouri.

The background of this case is:  in 1998 A.S.W. was born.  His biological father suffered a brain injury from a fall at work in 2000 and had to spend time in rehabilitation.  In 2001 the juvenile office filed a petition to take jurisdiction and custody of A.S.W. because of neglect by the mother.  The juvenile court decided that the father was in no condition physically or mentally to be able to take care of A.S.W. at that time.  In 2002 the juvenile office petitioned to have the parental rights of both parents terminated.  The juvenile court did so.  The father thereafter appealed and the Missouri Supreme Court reversed the termination as to the father because the state had failed to present substantial evidence that additional services would not facilitate the return of A.S.W. to the father.  Thereafter the father filed a petition for writ of habeas corpus and alternative motion to modify the legal and physical custody of A.S.W.  At the same time the foster parents of A.S.W. filed their petition to obtain guardianship of A.S.W. and to change his name.  The juvenile court consolidated these two actions and ruled against the father and in favor of the foster parents.  The father appealed on four different grounds. 

The father alleged in the first ground that the juvenile court failed to follow the Missouri Supreme Court's mandate that A.S.W. be returned to his custody.  The appellate court determined that the Supreme Court did not mandate that the custody be returned to the father, only that the trial court should consider whether additional services could be provided so that the child could be returned to the father.  The trial court heard evidence from several psychologists that the father could not independently care for A.S.W. and that his sister, with  whom the father was living with, did not believe the father needed supervision.  The father also testified that he planned to move out of his sister's home and into one with just him and A.S.W.  The appellate court ruled that the trial court did follow the Supreme Court's order.  The second ground was that the juvenile court's jurisdiction was no longer proper.  The appellate court quickly ruled against the father on this ground because he had  consented to the jurisdiction of the juvenile court when the initial proceedings started.  The fourth ground by the father was that the ruling for the guardianship was against the weight of the evidence.  Based upon all the evidence that the trial court heard, the appellate court determined that there was substantial evidence for this ruling.

The third ground of the father and the one involving section 211.038 is the one that the transfer to the Missouri Supreme Court was made on.  Section 211.039, RSMo (Cum. Supp. 2004) prevents a child from being reunited or placed in the home of a parent who has been convicted of certain felony offenses where a child was involved.  In 1986, before the effective date of this statute, the father pleaded guilty to two counts of sexual abuse in 1st degree, one count of sodomy, and one count of rape.  These charges involved the father's nieces, ages 5 and 6.  The sodomy and the sexual abuse convictions are included in the felonies listed in the statute.  The trial court mentioned this statute in ruling against the father and the father argues that this statute should not be applied retroactively to him.  The appellate court found that the trial court did not rely solely upon this statute in denying the father custody of A.S.W.  The trial court found that the father was unfit and unable to assume duties of guardianship, that A.S.W. would suffer emotional harm if removed from his present home, that the father's physical and mental conditions prevented him from being able to handle A.S.W.'s needs that would result from the emotional harm, that A.S.W. started suffering from nightmares and behavioral changes after the visits with father resumed in 2005, and that several psychologists testified that the father could not independently care for A.S.W.  These findings were enough to rule against the father obtaining custody of A.S.W. but because the trial court mentioned section 211.038 in its determination, the appellate court considered  whether this statute should be applied retroactively.  It determined that it has been applied retroactively at least one time before in In re T.M.E., 169 S.W.3d 581 (Mo. App. 2005), and it agreed with this decision.  The appellate court determined that the trial court properly applied this statute to the father but because of the general interest and the importance of the question, it transferred the case to the Missouri Supreme Court for its decision on the retroactiveness of section 211.038.   It could be many months before the Supreme Court issues its decision.

Source:  In the Interest of A.S.W., ED88382, (Mo. App. E.D. 03/06/2007)