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DIVISION THREE

MATTHEW S. GRZYBiNSKI, ) No. ED101876

)

Petitioner/Appellant, ) Appeal from the Circuit Court

) of St. Charles County
vs. )

) Honorable Matthew E.P. Thornhill
DIRECTOR OF REVENUE, )

)

Respondent. ) Filed: January 12, 2016

The petitioner, Michael Grzybinski, appeals the judgment of the Circuit Court of St.
Charles County sustaining the administrative suspension of his driver’s license by the Director of
Revenue. The petitioner asks this Court to order the suspension of driving privileges stricken
from his record and the reinstatement of those privileges. Because the director had already
expunged the administrative suspension from the petitioner’s driving record, we hold the dispute
between the parties is rendered moot, and therefore dismiss the appeal.

Factual and Procedural Background

Trooper Angela Coval of the Missouri Highway Patrol received a dispatch to a one-car
accident near Highway P and Guthrie Road in St. Charles County in the early morning hours of
August 1 1, 2012. Upon arrival, Trooper Coval found a vehicle registered to Melissa Grzybinski
lying on its side next to the road. Several witnesses described seeing a white teenaged male

walking around the vehicle when they came upon the accident. The witnesses reported seeing no

one else, and a search of the area for anyone else involved proved fruitless. Witnesses also
reported that another young man had taken the white teenaged male to the hospital.

Trooper Coval’s investigation led her to St. J oseph’s Health Center West where the
petitioner, then age 18, was being treated for injuries consistent with a motor-vehicle accident.
The petitioner admitted to driving “some of the way” and went on to acknowledge, “I remember
driving down and yelled, ‘Oh, my God, what’s happening?” He never named anyone else who
was driving his mother’s car. Trooper Coval smelled a strong odor of alcohol on the petitioner,
and observed that his eyes were bloodshot. She performed a horizontal gaze nystagmus test on
the petitioner, and based upon her observation of six out of six clues, placed him under arrest for
driving while intoxicated.

On February 23, 2013, the director administratively suspended the petitioner’s driving
privilege for 90 days in accordance with Missouri’s zero-tolerance policy for drivers under the
age of 21. The suspension appeared on the petitioner’s driving record as an “Administrative
Zero Tolerance Suspension effective on 2-23-2013.” The circuit court sustained the suspension
on July 29, 2014 following a trial de novo. The petitioner appealed. The director expunged the
administrative suspension of the petitioner’s driving privilege from his driving record pursuant to
section 302.545 RSMo. (Supp. 2013) prior to brieﬁng, oral argument, and submission of this
appeal. The petitioner conceded probable cause for his arrest at oral argument. He maintained
his claim, however, that the trial court erred in admitting the results of his blood-alcohol test
without the live testimony of the blood drawer. At oral argument, we ordered the parties to brief

the issue of mootness.

Discussion

Section 302.545.] provides in relevant part that any person who is less than 21 years of
age, whose driving privilege has been suspended or revoked for a ﬁrst determination that such
person was driving with two-hundredths of one percent of blood—alcohol content, shat] have the
suspension or revocation expunged from all ofﬁcial records and recordations maintained by the
Department of Revenue. The director shall perform the expungement without need of a court
order either two years after the date of the suspension or revocation or when such person reaches
age 21, whichever occurs first. Section 302.545.1. Here, the director expunged the
administrative suspension from the petitioner’s driving record in 2015 prior to brieﬁng, oral
argument, and submission of this appeal, and the suspension no longer appears on the
petitioner’s driving record.I Consequently, we hold that the petitioner’s appeal is moot.

In any appellate review of a controversy, a threshoid question is the mootness of the
controversy. SI. Louis Poiice Leadership Org. v. Sr. Louis Ba’. of Police Commissioners, 465
S.W.3d 501, 506 (Mo. App. ED. 2015). It is well-settled that Missouri courts do not determine
moot cases. Id. A moot case raises the issue ofjusticiability, and courts may dismiss a moot
case sua sponte. Id. A question is justiciable only when the judgment will declare a ﬁxed right,
and will accomplish a useful purpose. Id. “When an event occurs that makes a court’s decision
unnecessary or makes granting effectual relief by the court impossible, the case is moot and
generally should be dismissed.” Id. (quoting Kinsley v. Steiger, 109 S.W.3d 194, 195 (Mo. App.
ED. 2003)). Even a case vital at inception of the appeal may be mooted by an intervening event
that so alters the parties’ position that anyjudgment rendered merely becomes a hypothetical

opinion. City ofManchesIer v. Ryan, 180 S.W.3d 19, 21»22 (Mo. App. ED. 2005).

5 We have closely scrutinized the petitioner‘s current driving record. We cannot find any entry recording the
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expunged.

Appellate courts must dismiss moot appeals except in two narrow situations. In re J. T8,,
462 S.W.3d 475, 478 (Mo. App. W .D. 2015). The first is when the case becomes moot after
submission and argument. Id. The second situation arises when the issue raised has general
public interest and importance, and is likely to recur and will otherwise evade appellate review.
Id. We narrowly construe these exceptions to mootness. Id.

The first exception does not apply because the director expunged the petitioner’s driving
record pursuant to section 302.545 in the ﬁrst half of 20] 5, prior to briefing, oral argument, and
submission. When a situation changes so that no relief can be granted because it has already
been obtained, the Court will not go through the empty formality of determining whether the
requested relief might have been granted. Id. at 479.

Nor does the second exception apply. The second exception, premised on the appeal’s
“public interest,” occurs when a case presents an issue that: (l) is of general public interest and
importance, (2) will recur, and (3) will evade appellate review in future live controversies. C ity
ofil/Icmchesfer, 180 S.W.3d at 22. “This second exception is ‘very narrow . . . and if an issue of
public importance in a moot case is likely to be present in a future live controversy practically
capable of review, the ‘public interest’ exception does not apply.m Id. (quoting Kinslgr, 109
S.W.3d at 196). Even if an exception applies, dismissal of the case lies within the appellate
Court’s discretion. Id.

In this case, we find no reason to believe the issue will evade appellate review in future
live controversies. The director stated in her brief that approximater 1,000 petitions for trial de
novo are ﬁled each year challenging the director’s administrative suspension of driving
privileges. in any appropriate case, counsel for the petitioner is free to raise the claim of error

advanced by the petitioner here, namely that the test results for the petitioner’s blood-alcohol

content should not have been admitted into evidence without the live testimony of the blood
drawer. This argument regarding foundational requirements for admission of these results is not
limited to zero-tolerance cases subject to expungement such as this one. There will be ample
opportunity for the appellate court to address this issue in other cases while the suspension of the
petitioner’s driving privilege remains on his or her record, when the court could possibly grant
effectual relief. Consequently, the “public interest” exception does not empower us to exercise
our discretionary jurisdiction to reach the merits of this moot case.
Conclusion

Because the administrative suspension had been expunged from the petitioner’s driving
record at the time of submission of this case, we are not able to grant the petitioner effectual
relief. See Smith v. Dir. quevemle, 139 S.W.3d 214, 215-16 (Mo. App. ED. 2004)(dismissing
appeal as moot because driver was eligible for reinstatement of full driving privileges at time of
submission ofcase so that court could not grant director effectual relief). By virtue of the
expungement pursuant to section 302.545, the petitioner has secured the very relief he seeks in
this appeal—the removal of the administrative suspension from his driving record. Furthermore,

neither exception to mootness applies. Therefore, we dismiss the appeal as moot.

Jmlg

LAWRENCE E. MO NEY, DOE

 

ROBERT M. CLAYTON III, P.J., and
JAMES M. DOWD, J., concur.

