            SUPREME COURT OF MISSOURI
                                       en banc

MATTHEW CARVALHO,                        )              Opinion issued March 19, 2019, and modified
                                         )              on the Court's own motion April 30, 2019
      Appellant,                         )
                                         )
vs.                                      )              No. SC97394
                                         )
DIRECTOR OF REVENUE,                     )
                                         )
       Respondent.                       )

                     Appeal from the Circuit Court of Franklin County
                            Honorable Stanley Williams, Judge

      Matthew Carvalho appeals the suspension of his driver’s license for driving while

intoxicated. He argues the circuit court erred in admitting the report showing his blood

alcohol content (BAC) was .087 percent, over the legal limit, because the director of

revenue did not present evidence showing the report was timely filed with the department

of health and senior services (DHSS). He also alleges the implied consent notice failed to

comply with due process because it misled him in stating his license would be suspended

immediately if he refused the breath test and in failing to tell him the consequences of

taking the breath test. Finally, he alleges a later notice of suspension given him after he

failed the breath test did not adequately inform him what the director of revenue would
have to prove to suspend his license.

       This Court affirms. The filing of the report with DHSS is a collateral requirement

that does not affect the performance of the test or its validity or accuracy, and, so, a

failure to timely make that filing does not preclude admission of the report. Further, the

implied consent notice was accurate in telling Mr. Carvalho his license would be

suspended immediately should he refuse the breath test. The fact he would then be given

a 15-day permit did not change that fact. Nothing in Missouri law or in the due process

clause required the officer to tell Mr. Carvalho the consequences of taking the breath test,

to which he had already had consented by driving on Missouri’s roads. It was only as to

the consequences of withdrawing that consent that he required notice. Finally, the notice

of suspension accurately told Mr. Carvalho the facts required by statute to suspend his

license and how to request a hearing. Due process did not require the officer to explain

the law regarding the burden of proof the director would bear at that hearing.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       An officer from the Washington, Missouri, police department stopped Mr.

Carvalho on May 10, 2017, for speeding. Mr. Carvalho had crutches in the car and stated

he had been at a hospital due to a foot injury. The officer’s report states he suspected Mr.

Carvalho was driving while intoxicated based on his “very strong odor of intoxicants”

and “watery, bloodshot, and glassy” eyes. Mr. Carvalho said he had not been drinking

but declined to allow the officer to perform a horizontal eye nystagmus test, stating, “I

ain’t doing that, you can talk to my lawyer.” In the incident report, the officer noted Mr.

Carvalho slurred his words when he spoke. The officer asked Mr. Carvalho to exit the

                                                2
vehicle, which he did with the assistance of his crutches. The officer asked Mr. Carvalho

to provide a sample of his breath and advised him of Missouri’s implied consent law.

When Mr. Carvalho refused, the officer arrested him for speeding and driving while

intoxicated and transported him to the Washington police station.

       At the police station, the officer asked Mr. Carvalho to provide a breath sample

and read him what is commonly referred to as “the implied consent warning” contained

in the Missouri department of revenue alcohol influence report:

              You are under arrest. I had reasonable grounds to believe you were
       driving a motor vehicle while in an intoxicated or drugged condition. To
       determine the alcohol or drug content in your blood, I’m requesting you to
       submit to a chemical test of your breath. If you refuse to take the test, your
       driver’s license will immediately be revoked for one year. Evidence of your
       refusal to take the test may be used against you in prosecution in a court of
       law. Having been informed of the reasons for requesting the test, will you
       take the test?

       Mr. Carvalho asked to speak with an attorney. After doing so, Mr. Carvalho

agreed to take the breath test. It showed Mr. Carvalho had a BAC of .087 percent. When

a breath test shows a BAC above .08 percent, the officer:

          2. … shall take possession of any driver’s license issued by this state
       which is held by the person [and] … shall issue a temporary permit which
       is valid for fifteen days after its date of issuance and shall also give the
       person arrested a notice which shall inform the person of all rights and
       responsibilities pursuant to sections 302.500 to 302.540. … The notice shall
       also contain a detachable form permitting the arrested person to request a
       hearing.

§ 302.520.1, .2. 1

       As required by this statute, the officer took possession of Mr. Carvalho’s license




                                                3
and provided him with a 15-day temporary permit with notice that his “driving privilege

will be suspended or revoked 15 days from the date of this notice if you do not request a

hearing” and with a form explaining how to request a hearing. As required by section

302.510, the officer prepared and forwarded a report to the department of revenue.

Mr. Carvalho does not contest these procedures were followed.

       Based on the officer’s report, the department determined Mr. Carvalho was

arrested upon probable cause to believe he was driving a motor vehicle with a BAC

above .08, and suspended his license. 2 Section 302.505.2 provides this determination

“shall be final unless a hearing is requested and held. If a hearing is held, the department

shall review the matter and make a final determination on the basis of evidence received

at the hearing.” Mr. Carvalho timely requested a hearing. § 302.530. The hearing

officer sustained the suspension. Mr. Carvalho then timely filed a petition for trial de

novo. § 302.535.

       Section 302.312 provides, “Copies of all records lawfully filed in the offices of the

department of revenue or the bureau of vital records of the department of health and

senior services and copies of any records, properly certified by the appropriate custodian

or the director,” are admissible as evidence. Accordingly, the department submitted as

exhibit A at the trial de novo a certified copy of the formal notice of suspension, as well




1
  All statutory references are to RSMo Supp. 2017, unless otherwise noted.
2
  Under section 302.525.2, the license will be suspended not revoked when, as here, the
person’s license has not been suspended within the previous five years for an alcohol
related offense.

                                                4
as the alcohol influence report, blood alcohol test report, uniform citation, DHSS “Intox

EC/IRII Maintenance Report,” incident report, arrest report, misdemeanor probable cause

statement, and Mr. Carvalho’s driving record. The department did not present any live

testimony.

       Mr. Carvalho objected to the admission of the portion of exhibit A containing his

.087 BAC test results because he alleged admission would violate Missouri regulations

and his due process rights:

       Your Honor, my only objection to Exhibit A would be any introduction of
       the alleged BAC result as they are found in that exhibit. Specifically, my
       objection would be that my client -- there was no probable cause for the
       arrest. My client’s due process rights were violated in obtaining the breath
       result, and also the foundational requirements in 19 CSR 25-30.0313 were
       not satisfied.

       Consistent with what he told the officer at the scene, Mr. Carvalho testified in his

defense that he did not drink at all on the day of his arrest and had recently left the

hospital after injuring his foot just prior to the time he was pulled over. Although he

spoke with a lawyer after receiving the warning, he said he took the breath test based on

use of the word “immediately” in the warning because he thought this meant if he did not

take the test he would be prohibited from driving for the remainder of the year to work

and to school and was concerned he would lose his job. He testified he did not realize he

would get a temporary permit.

       The circuit court sustained the suspension of Mr. Carvalho’s driving privilege.

Mr. Carvalho’s timely appeal was transferred to this Court because Mr. Carvalho

challenges the validity of sections 577.041, 302.505, and 302.574. See Missouri Const.


                                                5
art. V, sec. 3.

II.    STANDARD OF REVIEW

       In this court-tried case involving a license revocation, “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). “When facts are not contested and

the issue is one of law our review is de novo, and no deference is given to the trial court’s

determination.” Stiers v. Director of Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016)

(Quotation omitted). The Court reviews the constitutional validity of a statute de novo.

Hink v. Helfrich, 545 S.W.3d 335, 338 (Mo. banc 2018).

III.   STATUTORY AND REGULATORY FOUNDATIONAL REQUIREMENTS
       WERE MET FOR ADMISSION OF THE BREATH TEST RESULTS

       Mr. Carvalho contends the breath test results were inadmissible because the

director failed to demonstrate compliance with 19 CSR § 25-30.031(3), which provides

that a copy of maintenance reports on breathalyzers must be filed with DHSS within 15

days. In considering this argument, it is helpful to review what must be shown to revoke

or suspend a person’s license for an excessive BAC.

       The department of revenue is required to suspend or revoke an adult driver’s

license “upon its determination that the person was arrested upon probable cause to

believe he was driving a motor vehicle while the alcohol concentration in the person’s

blood or breath was eight-hundredths of one percent or more by weight of alcohol in his

blood.…” § 302.505.1. At any trial de novo, the director also must present evidence


                                                 6
showing probable cause for the arrest and that the driver’s blood alcohol level exceeded

the legal limit. Vanderpool v. Director of Revenue, 226 S.W.3d 108, 109 (Mo. banc

2007). The director has the burden of proof and the burden of persuasion. White, 321

S.W.3d at 305.

       Section 577.020(3) provides, “To be considered valid, chemical analysis of the

person’s breath, blood, saliva, or urine shall be performed, according to methods

approved by the state department of health and senior services.” (Emphasis added). It

requires DHSS approve techniques and establish standards for conducting these tests:

       4. The state department of health and senior services shall approve
       satisfactory techniques, devices, equipment, or methods to be used in the
       chemical test pursuant to the provisions of sections 577.019 to 577.041.
       The department shall also establish standards to ascertain the qualifications
       and competence of individuals to conduct such analyses and issue permits
       which shall be subject to termination or revocation by the state department
       of health and senior services.

§ 577.020(4). “To establish a prima facie foundation for the admission into evidence of

the results of a breathalyzer test … the test must be performed: (1) by following the

approved techniques and methods of the Division of Health; (2) by an operator holding a

valid permit; (3) on equipment and devices approved by the division.” Stuhr v. Director

of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989).             This means when there are

“regulations concerning the proper methods of conducting blood alcohol tests as

authorized by Chapter 577 … the state must demonstrate absolute and literal compliance

with these regulations prerequisite to introducing the test results into evidence.” State v.

Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991) (emphasis added).

       But here, Mr. Carvalho does not dispute that the director adduced evidence of all

                                                7
three foundational requirements to show the test was performed in compliance with

DHSS regulations. The officer conducted the test on equipment approved by DHSS, and

no party disputes a maintenance check had been conducted within 35 days on that

machine.   The officer held a valid permit from DHSS to use that equipment and

conducted the test according to the procedures and techniques prescribed by DHSS.

      Mr. Carvalho nonetheless argues the breath test should have been excluded

because the director failed to prove compliance with another section of the regulations

providing, “The permittee shall retain the original report of the maintenance check and

submit a copy of the report so that it shall be received by [DHSS] within fifteen (15) days

from the date the maintenance check was performed.”             19 CSR § 25-30.031(3).

Mr. Carvalho contends the director failed to present evidence the maintenance-check

report for the breath analyzer had been submitted to DHSS within 15 days following the

last maintenance check conducted on the machine.

      Mr. Carvalho’s complaint is with a record-keeping regulation requiring a copy of

maintenance reports be submitted to DHS within a 15-day period after the test was

conducted. He does not claim this failure affected the validity, performance, or accuracy

of the test. He simply says it is, in effect, a foundational box the department did not

check and, so, makes the test inadmissible.

      But neither the relevant statutes nor the cited regulations make admissibility of the

breath test result dependent on whether collateral record-keeping requirements were met.

As noted earlier, section 302.312 states records properly deposited with the department of

revenue shall be admissible. There is no question the report properly was deposited with

                                                8
the department of revenue. Further, section 577.020(3) provides “To be considered valid,

chemical analysis of the person’s breath, blood, saliva, or urine shall be performed,

according to methods approved by the state department of health and senior services ....”

Mr. Carvalho does not contend the blood test was not performed according to approved

methods.    Finally, section 577.020(4) provides that the department shall establish

techniques and establish standards for performing tests.        Once again, there is no

suggestion the test was not performed in accordance with these techniques and standards.

       Indeed, although this is this Court’s first opportunity to address this issue,

Mr. Carvalho’s argument has been rejected repeatedly by the court of appeals. Turcotte

v. State, 829 S.W.2d 494, 496 (Mo. App. 1992), held a breath test was admissible

although the maintenance report was not sent to DHSS at all because the “failure to file

timely maintenance reports does not impeach the machine’s accuracy, which is the main

concern here.” Both Hearne v. v. Director of Revenue, 559 S.W.3d 66, 69 (Mo. App.

2018), and Roam v. Director of Revenue, 559 S.W.3d 1, 4 (Mo. App. 2018), found the

failure to file the maintenance report within 15 days should not have rendered the drivers’

tests inadmissible as that failure did not impeach the tests’ accuracy, citing Turcotte.

Accord Potts v. State, 22 S.W.3d 226, 230 (Mo. App. 2000) (breath test admissible when

the permittee accidentally kept the copy of the maintenance check and sent the original to

DHSS, as this minor record-keeping error did not affect the test’s validity or

performance).

       By contrast, when regulatory matters affect the actual performance of maintenance

tests of breathalyzers, strict compliance is required. Woodall v. Director of Revenue, 795

                                                9
S.W.2d 420, 420 (Mo. App. 1990), held the statutory foundation for the admission of a

BAC test was not satisfied because the State admitted that no maintenance check took

place within 35 days prior to the test, as this could have affected the validity of the test

result. See also Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992)

(finding evidence of compliance with 19 CSR § 25-30.031’s requirement of regular

maintenance checks is required because it bears directly on “proper functioning and

operation of the machine when a blood alcohol analysis is conducted” and is intended “to

ensure the reliability of a particular test result.”). 3

       This holding does not undercut the importance of the recordkeeping requirements

set out in the regulations issued under chapter 302. It simply recognizes the purpose of

the regulation at issue is aimed at the internal recordkeeping needs of DHSS and allows

DHSS to verify compliance among permittees. There may well be cases in which, for

instance, the identity of a test result is at issue and compliance with this regulatory

requirement can assist the court or administrative body in determining whether the proper

test result is being considered.       Further, records properly deposited with DHSS are

admissible in courts and in administrative proceedings if certified by a proper custodian




3
  Mr. Carvalho suggests White, 321 S.W.3d at 307, effectively overruled Turcotte and its
progeny. While he is correct White clarified the burden of production is on the director,
neither Turcotte nor Potts was based on an incorrect placement of the burden of
production. They turned on the fact the failure to comply with a collateral record-keeping
requirement did not affect the validity of the test.
       Roam and Hearne were decided after White and are consistent with it. In fact,
Roam rejected this very argument, stating White does not discuss “compliance with a
regulation that does not impact the validity of the test as a foundational prerequisite to the
admission of breath test results.” 559 S.W.3d at 4 fn. 1. This Court agrees.
                                                 10
just as are records filed with the department of revenue, an obvious regulatory advantage.

§ 302.312. But the regulation plays no role in determining the admissibility of the report

in the absence of a claim it is relevant to the test’s accuracy or performance. No such

claim is made here. 4

IV.    MR. CARVALHO’S PROCEDURAL DUE PROCESS RIGHTS WERE NOT
       VIOLATED

       “Procedural due process imposes constraints on governmental decisions which

deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.

319, 332 (1976). Driver’s licenses are property interests protected by procedural due

process and “are not to be taken away without that procedural due process required by the

Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112 (1977) (Quotations omitted).

Mr. Carvalho does not make a due process challenge to the initial suspension of his

license or deny he received a meaningful hearing. Instead, Mr. Carvalho argues he was

provided constitutionally deficient notice of that hearing.




4
   The parties dispute whether the circuit court judgment addressed whether the document
was timely sent to DHSS even though the court’s order specifically states: “Petitioner
first argues that Respondent failed to establish that maintenance reports for the subject
breathalyzer were filed within 15 days of April 30, 2017. Petitioner’s argument is
contrary to the records contained in Respondent's Exhibit A and the applicable law.”
(Emphasis added). The report contained in exhibit A was stamped as received the day
after the test was conducted by a named person who the official state manual lists as a
current employee of DHSS. But, as the state manual was not before the circuit court, the
parties dispute whether this Court can judicially notice it on appeal. Because the report
was admissible regardless of whether it was timely filed with DHSS, the Court does not
reach this issue.

                                                11
       Procedural due process permits deprivation of a property interest by the

government only upon notice and an opportunity for a hearing. Moore v. Board of Educ.,

836 S.W.2d 943, 948 (Mo. banc 1992). This does not require the same type of process in

every instance; rather, “due process is flexible and calls for such procedural protections

as the particular situation demands.” Jamison v. State Department of Social Services, 218

S.W.3d 399, 406 (Mo. banc 2007), quoting, Morrissey v. Brewer, 408 U.S. 471, 481

(1972). Due process requires “notice reasonably calculated, under all the circumstances,

to apprise interested parties of the pendency of the action and afford them an opportunity

to present their objections.” Stough v. Bregg, 506 S.W.3d 400, 404 (Mo. App. 2016),

quoting, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

       Mr. Carvalho challenges the sufficiency of two notices.        First, he argues the

implied consent warning given him by the officer when he was first stopped failed to

meet the standard this Court set out in Teson v. Director of Revenue, 937 S.W.2d 195, 197

(Mo. banc 1996). Teson held an implied consent warning fails to satisfy due process if

the words used “either (1) fail to inform the arrestee of all of the consequences of refusal

or (2) mislead the arrestee into believing that the consequences of refusal are different

than the law actually provides.” Id. at 197.

       Mr. Carvalho concedes the officer read him the notice required by section 577.041

as to the consequences of refusing to take the breath test: “If you refuse to take the test,

your driver’s license will immediately be revoked for one year.” He does not allege this

notice failed to inform him of the consequence of refusal that his license would be

immediately suspended or misled him into believing that consequence would not occur.

                                                12
Rather, he alleges the notice the statute requires the officer to give him is “misleading”

because the suspension of his license does not occur immediately and, therefore, the

notice is inaccurate.

       Contrary to Mr. Carvalho’s argument, section 302.574.1 provides, when a driver

refuses to submit to a breath test, “the officer … shall take possession of any license to

operate a vehicle issued by this state which is held by that person.” In other words, the

driver immediately loses his license. Mr. Carvalho actually objects to the fact the statute

does not also require the officer to inform him that, once his license was suspended, he

would get a 15-day permit even if he refused the test. While he argues this makes the

suspension not “immediate,” he is simply incorrect. The suspension of his license is

immediate. What is not immediate is a complete prohibition on his ability to legally

drive. But due process “does not require notice that some particular step must be taken or

that certain procedure be followed; the opportunity afforded is to make a choice of

whether to ‘appear or default, acquiesce or contest.’” State v. Goodbar, 297 S.W.2d 525,

528 (Mo. 1957), quoting, Mullane, 339 U.S. at 314.

       Teson is not to the contrary. In Teson, the officer inadvertently left out the word

“immediate” when giving Teson the implied consent warning—that is to say, the officer

left out the very word argued here to be misleading. The defendant there made the

entirely opposite argument from that now urged by Mr. Carvalho: he claimed, because he

was not read the word “immediately,” or a synonym, he was uninformed and uncertain

about whether to refuse the test, for he did not know his license could be immediately

suspended. Id. at 197. The Court rejected this argument not because it found the

                                               13
suspension would not be immediate—indeed, that was the position taken by the separate

opinion of Judge Limbaugh, a view the Court did not adopt. Id. at 199. Rather, the

Court upheld the suspension because it found the immediacy of the suspension is implicit

in the other words forming the warning even without the use of the word “immediately,”

as the remaining language makes it clear refusal to submit to the test “guarantee[s] a

certain loss of the driving privilege.” Id. at 198.

       This Court reaffirms the result in Teson. The officer takes physical possession of

the driver’s license, and the driver is given a permit good for only 15 days. § 302.574.1.

This temporary permit is not a license. A court may subsequently stay this revocation,

but until and unless the court acts, the revocation already has taken effect. § 302.574.3-5.

This immediate suspension when the test is refused contrasts with the provisions

governing when a driver takes the breath test but is shown to be over the legal limit. In

the latter circumstance, section 302.525.1 provides the actual suspension or revocation

itself does not become effective until 15days after the driver has received notice. The

implied consent warning did not mislead Mr. Carvalho as to the consequences of his

refusal of the test.

       Mr. Carvalho alternatively argues, even if the implied consent warning adequately

told him the consequences of refusing the breath test, it did not tell him the consequences

of consenting to the breath test – that his license could be suspended if the test shows a

BAC exceeding .08 percent. He says by warning him of the immediate loss of his license

if he refuses the test but not warning him of the consequences of taking the test, the

warning “implies that providing a sample is a consequence-free act.”

                                                  14
       Before being asked to take the breath test in Missouri, every driver is told the

reason for the test, to wit, the officer “had reasonable grounds to believe you were driving

a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or

drug content in your blood, I’m requesting you to submit to a chemical test of your

breath.” This language notifies every driver, including Mr. Carvalho, the purpose of the

testing is to confirm or negate the officer’s belief the driver is intoxicated. Mr. Carvalho

also was given Miranda warnings after his arrest which informed him he may speak with

an attorney, and he did so before deciding whether to take the test. “It strains credulity to

suggest that a person arrested for [drunken driving] will not know that if he submits to a

chemical test the results may be used against him at trial.” State v. Knous, 313 N.W.2d

510, 512 (Iowa 1981). While the record does not reveal why Mr. Carvalho chose to take

the test, nothing in the record supports any cause for confusion as to the consequence of

testing above the legal limit.

       Even more basically, however, Mr. Carvalho’s argument ignores that the purpose

of the implied consent warning is not to obtain a driver’s consent to a breath test. A

driver already gave that consent as soon as he took the wheel in Missouri, for by driving

on Missouri's public roads a person impliedly consents to tests of the person's breath,

blood, saliva or urine for the purpose of determining the alcohol or drug content of the

person's blood, if the police officer has reasonable grounds to believe the driver is

intoxicated. § 577.020.1; Brown v. Dir. of Revenue, 34 S.W.3d 166, 171 (Mo. App.

2000). The purpose of the warning is only to inform drivers such as Mr. Carvalho they

can withdraw that implied consent and refuse to submit to any chemical tests but, if they

                                                15
so choose, there will be consequences. See Kimbrell v. Director of Revenue, 192 S.W.3d

712, 716 (Mo. App. 2006) (“Giving the driver the option to refuse to consent with the

consequence of an automatic one year revocation of his or her driver’s license balances

the right to privacy against the public’s interest in controlling the menace of drunken

driving”) (Internal quotations omitted). Its purpose is not to remind Mr. Carvalho of the

consequences of a consent he already gave when he drove his first mile on Missouri’s

highways. Due process does not require such a reminder.

       Mr. Carvalho finally argues he was misled by the written notice the officer gave

him after he took but failed the breath test.        The notice was entitled “Notice of

Suspension or Revocation of Your Driving Privilege” and stated:

       You have been stopped and/or arrested upon probable cause that you were
       driving a vehicle while your blood alcohol level was over the legal limit.
       Your driving privilege will be suspended or revoked 15 days from the date
       of this notice if you do not request a hearing.

Mr. Carvalho notes section 302.505 requires more than probable cause to arrest in order

for the director to administratively suspend his license. The director also must present

evidence the person actually was driving the vehicle and that the driver’s BAC content

was actually above .08. He says because the notice did not inform him of the elements

the director must find to support his suspension, it was misleading and insufficient.

       Mr. Carvalho misapprehends the purpose of the notice. It accurately told him that

if he did not request a hearing, his license would be suspended or revoked in 15 days. It

did not purport to also tell him what the director would be required to prove if

Mr. Carvalho did request a hearing, and he cites no authority requiring it to do so. Other


                                                16
parts of the notice notified Mr. Carvalho how to request an in-person hearing and

contained instructions for contacting the department of revenue.

       This was adequate.     While a notice cannot mislead, parties are “held to a

knowledge of the law.” See Bishop v. Board of Ed. of Francis Howell Sch. Dist., St.

Charles, 575 S.W.2d 827, 829 (Mo. App. 1987). Notice required by the Due Process

Clause simply must “ensure that the opportunity for a hearing is meaningful,” so that

once informed of an administrative action, the person “can turn to public sources to learn

about the remedial procedures available to him.” Sneil, LLC v. Tybe Learning Center,

Inc., 370 S.W.3d 562, 572 (Mo. banc 2012), quoting, City of West Covina v. Perkins, 525

U.S. 234, 240-41 (1999) (discussing property seizure notice). As noted in rejecting Mr.

Carvalho’s other due process claim, due process “does not require notice that some

particular step must be taken or that certain procedure be followed; the opportunity

afforded is to make a choice of whether to ‘appear or default, acquiesce or contest.’”

Stough, 506 S.W.3d at 404, quoting, Mullane, 339 U.S. at 314. The director had no

obligation to act as counsel to the driver and inform him about the standards and burdens

of proof that would apply at a hearing should he request one. 5




5
 Mr. Carvalho also argues the notice of suspension is misleading when it states being
“stopped upon probable cause” is a basis for suspension or revocation because unless one
is under age 21, the suspension can follow only an arrest, not a mere stop under section
302.505. This Court does not address this question as Mr. Carvalho was arrested and was
over 21. “[O]ne to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be unconstitutional.” State v.
Ellis, 853 S.W.2d 440, 446 (Mo. App. 1993), quoting, United States v. Raines, 362 U.S.
17, 21 (1960).
                                                17
IV. CONCLUSION

    For the reasons stated above, this Court affirms.



                                              _________________________________
                                                    LAURA DENVIR STITH, JUDGE

    All concur.




                                             18
