Engelage v. Director of Revenue

• Decision Date: 13 June 2006
• Docket Number: No. WD 65081.,WD 65081.
• Citation: 197 S.W.3d 197
• Parties: Patricia ENGELAGE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

197 S.W.3d 197

Patricia ENGELAGE, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. WD 65081.

Missouri Court of Appeals, Western District.

June 13, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2006.

Katie L. Ambler, Assistant Attorney General, Jefferson City, MO, for appellant.

Jeffrey S. Eastman, Gladstone, MO, for respondent.

Before JOSEPH M. ELLIS, Presiding Judge, THOMAS H. NEWTON, Judge and PAUL M. SPINDEN, Judge.

JOSEPH M. ELLIS, Judge.

The Director of Revenue ("Director") revoked Patricia J. Engelage's driver's license based upon a law enforcement officer's probable cause determination that Engelage was driving while intoxicated. Engelage sought review, and after conducting an evidentiary hearing, the trial court ordered the Director to reinstate Engelage's driving privileges. The Director appeals. The judgment is affirmed.

Appellate review of this court-tried civil matter is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Innis v. Dir. of Revenue, 83 S.W.3d 691, 694 (Mo.App. W.D.2002). Accordingly, "`the trial court's decision will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it misstates or misapplies the law.'" Id. (quoting Wilson v. Dir. of Revenue, 35 S.W.3d 923, 925-26 (Mo.App. W.D.2001)); see also Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). "In determining whether there is substantial evidence supporting the judgment of the trial court we defer to the ability of the trial court to ascertain the facts. The trial court is accorded wide discretion even if there is evidence in the record which would support a different result." Krtek v. Dir. of Revenue, 975 S.W.2d 468, 471 (Mo.App. S.D.1998) (internal citation and quotation marks omitted). "In a driver's license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness." Long v. Dir. of Revenue, 65 S.W.3d 545, 548 (Mo.App. W.D.2001) (internal quotation marks omitted). Even so, this court's deference "is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court." Id. "[W]here evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the judge to resolve the factual issues, including determining the credibility of witnesses." Hampton v. Dir. of Revenue, 22 S.W.3d 217, 220 (Mo.App. W.D.2000).

Meanwhile, "[a]ppellate courts should exercise the power to set aside a decree or judgment on the ground that it is `against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong," Murphy, 536 S.W.2d at 32, keeping in mind that "[t]he mere existence of evidence from which another conclusion might have been reached is not enough to demonstrate that the holding of the trial court is contrary to the weight of the evidence." Purdun v. Purdun, 163 S.W.3d 598, 601-02 (Mo.App. W.D.2005). Moreover, "[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(c). The record does not disclose any request by the parties for specific findings of fact and conclusions of law, and none were issued. Since "neither party requested and the trial court did not make specific findings of fact and law, the trial court is assumed to have made findings consistent with the judgment issued." Pride v. Lewis, 179 S.W.3d 375, 378 (Mo. App. W.D.2005).

Stated in the light most favorable to the trial court's judgment, York v. Dir. of Revenue, 186 S.W.3d 267, 269 (Mo. banc 2006), the testimony at trial indicated that at approximately 12:56 a.m. on July 29, 2004, Platte County Sheriff's Deputy Travis Davies was on patrol in the vicinity of Barry Road and Waukomis in southern Platte County. Davies was approaching the eastbound traffic signal on Barry Road at Ambassador Drive when he observed a tan Chrysler Sebring coming off Ambassador and turning left onto eastbound Barry Road. According to Davies, the Sebring made a wide left-hand turn, nearly making contact with the opposite curb. At some point after the turn had been completed, Davies observed that the Sebring's taillights were not working, and he initiated a traffic stop by activating his overhead emergency lights and audible siren. In response to these signals, the Sebring pulled into the parking lot of a nearby shopping center.

Davies then exited his patrol car and made contact with the driver of the Sebring, who turned out to be Engelage. According to Davies, once the driver rolled down her window, he immediately smelled a strong odor of an intoxicating beverage coming from inside the car and noticed that the driver's eyes were watery and bloodshot. Davies identified himself to the driver and provided her with the reasons for the stop. When he asked her to produce her driver's license and proof of insurance, Engelage promptly did so with no difficulty.

Davies then asked Engelage to step out of the Sebring so he could perform some field sobriety tests on her to determine whether it was safe for her to continue driving. Engelage responded that such tests were unnecessary as she was right around the corner from her home. When Davies repeated his request for Engelage to leave her vehicle, Engelage told Davies to take her driver's license, return to his patrol car, and check it out. Davies did return to his vehicle, but instead of simply running her driver's license, called for backup. In response to Davies' request, Sergeant Anderson arrived a few minutes later. Upon Anderson's arrival, Davies returned to Engelage's vehicle and spoke with her again. Engelage then did as she was asked and exited her vehicle.

Once Engelage had left her vehicle and was standing next to it, Davies reiterated his request that she submit to field sobriety testing. Engelage then walked around her vehicle toward Anderson, once again explaining that field tests were unnecessary because she was just around the corner from her home, and also adding that such tests were unwarranted since she wasn't drunk.

On direct examination, Davies testified that he could not remember anything about the way Engelage got out of her vehicle, nor could Davies recall anything about the way Engelage walked or moved once she had left the vehicle. He did, however, claim to remember seeing that she was wearing something "like an ID" badge around her neck containing an advertisement for a bar, the reverse side of which said "Very Intoxicated People."¹ On cross-examination, however, Davies conceded that, as far as he could tell, Engelage "had no problems" maintaining her balance or with her ability to walk or turn and that he had not checked any of the boxes on the Alcohol Influence Report he had prepared which would have indicated that she was swaying, wobbling, stumbling, staggering, or falling, or that she had any other difficulty ambulating.

Davies then informed Engelage that she was under arrest for driving while intoxicated. On cross-examination, Davies testified that the indicia of intoxication on which he relied in making his probable cause determination were (1) the odor of alcohol coming from Engelage's car and person; (2) Engelage's watery, bloodshot eyes; and (3) Engelage's face being "very flushed." As to the last of these indicia, Davies explained: "I mean, you can tell that. I don't have a copy of her mug shot picture, but by the mug shot picture she had, her cheeks are very flushed. Her skin is very — has a dark reddish tint to it." Davies subsequently admitted on cross examination that the various written reports he had prepared contained no indication whatsoever that Engelage's face was flushed at or after the time of her arrest.

The record also shows that there were several other material discrepancies between Davies' trial testimony and the information contained in the incident report prepared by Davies after his encounter with Engelage. For example, while the report states that Davies saw the Sebring "swerve[ ] several times between the white lines" before he activated his siren and emergency lights, Davies made no such claim at trial. Furthermore, at trial, Davies testified that he noticed the Sebring's taillights were not operating as soon as it completed the left turn from Ambassador onto eastbound Barry Road. However, in his report, Davies stated that it was not until after the Sebring had completed the turn and he had later caught up with it further down Barry Road that he noticed the vehicle did not have any working taillights. Likewise, Davies' incident report states that Engelage "had a very distinct slur to her speech." At trial, though, Davies testified only that he "could tell there was a slur in her speech." On redirect, the Director elicited testimony from Davies that there were certain parts of the evening that he remembered and other parts that he had trouble remembering. The trial court was clearly concerned about this, as it asked Davies, on the record, whether he had a personal recollection of the events of July 29, 2004, or whether he was relying upon his written report and also noted that "[t]here have been numerous times that you've been reading directly from the report."

After he handcuffed her and checked the cuffs for proper fit, Davies escorted Engelage to his patrol car. Davies testified that, while seated in the patrol car, Engelage was very polite and tried to make small talk. When they arrived at the Platte County Jail, Davies gave Engelage her Miranda warnings. After subsequently being advised of her rights under Missouri's Implied Consent Law, at approximately 1:27 a.m., Engelage informed Davies that she would not submit to a chemical test of her breath. After her refusal to submit to the chemical test, Davies asked...