Bieker v. Dir. of Revenue, SD 30466.

• Decision Date: 14 January 2011
• Docket Number: No. SD 30466.,SD 30466.
• Citation: 345 S.W.3d 254
• Parties: Thomas Michael BIEKER, Plaintiff–Respondent,v.DIRECTOR OF REVENUE, State of Missouri, Respondent–Appellant.
• Court: Missouri Court of Appeals

345 S.W.3d 254

Thomas Michael BIEKER, Plaintiff–Respondent,
v.
DIRECTOR OF REVENUE, State of Missouri, Respondent–Appellant.

No. SD 30466.

Missouri Court of Appeals, Southern District, Division Two.

Dec. 23, 2010.Motion for Rehearing or Transfer Denied Jan. 14, 2011.

[345 S.W.3d 255]

Chris Koster, Atty. Gen., Jonathan H. Hale, Jefferson City, for Appellant.Stephen Charles Fenner, Springfield, for Respondent.NANCY STEFFEN RAHMEYER, Presiding Judge.

Thomas Michael Bieker was arrested for driving while intoxicated (“DWI”) and refused a breath test. The Director of Revenue (“the Director”) subsequently revoked Bieker's driving privileges for one year pursuant to section 577.041,¹ and Bieker filed a petition for review in the Circuit Court of Greene County. The circuit court found that Bieker was not legally arrested and that the officer did not have “valid reasonable cause” to believe that Respondent was driving while intoxicated. We affirm.

The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the trial court erroneously declared or applied the law. White v. Dir. of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). We view the evidence in the light most favorable to the judgment and where the facts

[345 S.W.3d 256]

relevant to an issue are contested, deference is given to the circuit court's assessment of that evidence. Id.

The Director claims the circuit court erred in declaring and applying the law because the reason for the stop is not a valid consideration on judicial review of a refusal under section 577.041, and the officer had probable cause to believe Bieker was driving while intoxicated.

Section 577.041 provides that the only three issues to be decided at a post-revocation hearing are: (1) that the person was arrested, (2) that the officer had reasonable grounds ² to believe that the person was driving while intoxicated, and (3) that the person refused to submit to the test. Section 577.041.4. “If the court determines any issues not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.” Section 577.041.5. At the hearing, the burden of proof is on the director. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). As the Supreme Court of Missouri recently explained in White, “[w]hen evidence is contested by disputing a fact in any manner, this Court defers to the trial court's determination of credibility.” White, 321 S.W.3d at 308. Furthermore, the trial court is free to believe or disbelieve any or all of the contested evidence. Id. at 312.

The Director contends that Bieker did not challenge any of the three issues. As to the second element, the Director contends Bieker did not dispute that he had been drinking, smelled of alcohol, had bloodshot and watery eyes, and slurred speech. The Director contends the court questioned the legality of the stop, not the occurrence of the arrest, and erroneously concluded that the initial stop had to be lawful in order to consider...