Zahner v. Dir. of Revenue, WD 72801.

• Decision Date: 13 September 2011
• Docket Number: No. WD 72801.,WD 72801.
• Parties: Richard A. ZAHNER, Respondent,v.DIRECTOR OF REVENUE, STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

348 S.W.3d 97

Richard A. ZAHNER, Respondent,

v.DIRECTOR OF REVENUE, STATE of Missouri, Appellant.

No. WD 72801.

Missouri Court of Appeals, Western District.

Sept. 13, 2011.

Chris Koster, Attorney General, James B. Farnsworth and Jamie Pamela Rasmussen, Assistant Attorneys General, Jefferson City, MO, for Appellant.David A. Yarger, Versailles, MO, for Respondent.Before Division IV: LISA WHITE HARDWICK, Chief Judge, Presiding, MARK D. PFEIFFER, Judge, and BRAD FUNK, Special Judge.MARK D. PFEIFFER, Judge.

The Director of the Missouri Department of Revenue (“Director”) appeals the Judgment of the Circuit Court of Miller County, Missouri (“trial court”), reinstating the driving privileges of Richard A. Zahner (“Zahner”) after administrative revocation by the Director. We affirm.

Facts and Procedural History

Zahner was pulled over by Officer Shane Pierce (“Officer Pierce”) of the Lake Ozark Police Department in the early morning hours of July 5, 2009, for swerving across the center line. When Officer Pierce talked to Zahner, he noticed that Zahner's eyes were bloodshot and that Zahner smelled like alcohol. Officer Pierce asked Zahner to perform some field sobriety tests, which Zahner failed.

Officer Pierce took Zahner to the police department. Officer Pierce asked Zahner to take a breath alcohol test. According to Officer Pierce, Zahner refused to take the test. Zahner maintained that he never refused to take the test, and Zahner claims that Officer Pierce never read him the implied consent warning required by section 577.041.1.¹

Zahner's driver's license was administratively revoked by the Director. ² Zahner filed a petition for review, and the trial court held an evidentiary hearing, in which the trial court heard the widely divergent testimony of Officer Pierce and Zahner. At the hearing, Officer Pierce testified that any confusion over whether he had read the implied consent warning to Zahner and whether Zahner refused the test could be cleared up by a video recording of Zahner's booking at the police station. Notably, the trial court instructed the Director to produce the videotape—strongly suggesting that the trial court was not convinced that Officer Pierce's testimony alone was sufficient to convince the trial court that Zahner had been read the implied consent warning or otherwise refused the breath alcohol test. The trial court continued the hearing so that the videotape could be produced to the trial court for review. A week later, however, counsel for the Director advised the trial court that the videotape had been “destroyed as part of the post arrest routine.”

In its judgment, the trial court noted, in pertinent part:

The Court is also troubled by the officer's assurance that the recordings were available only to be advised one week later that the recordings had been “... destroyed as part of the post arrest routine.” The Court chooses not to infer that the destruction occurred after the officer's assurance.

....

The “policy” here alleged causes the Court to ask, “If the recordings are not preserved for evidentiary purposes then why are they made in the first instance? Are they gleaned to preserve evidence favorable to the arresting agency in support of their cases and the rest purged so as to be unavailable to a party opponent?”

Left without production of the corroborating evidence promised by Officer Pierce, the trial court weighed the credibility of the conflicting evidence and ruled in favor of Zahner, entering judgment requiring that the Director reinstate Zahner's driving privileges.

The Director appeals.

Standard of Review

A trial court's judgment in a driver's license revocation case under section 302.535, RSMo Cum.Supp.2010, is reviewed as any court-tried civil case. White v. Dir. of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010). In an appeal from a court-tried civil case, we will affirm the trial court's judgment 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. Id. at 307–08 (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence.” Id. at 308. This is because the trial court “ ‘is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.’ ” Id. at 308–09 (citation omitted).

Analysis

Even though the spoliation doctrine may not be applicable to the Director for the conduct of law enforcement officers, this case illustrates the practical dilemma a law enforcement agency faces when it destroys relevant evidence—i.e., the risk that the arresting officer's testimony may not be accorded the credibility that the officer (and the Director) might like for such testimony to receive.³

Implied Consent Law

Section 577.020.1(1) provides that all persons who operate a motor vehicle in the State of Missouri have consented to a test of their breath, blood, saliva, or urine to determine their blood alcohol or drug content if they are arrested for any offense arising out of acts for which the arresting officer had reasonable grounds to believe were committed while they were driving while in an intoxicated or drugged condition. Hursh v. Dir. of Revenue, 272 S.W.3d 914, 916 (Mo.App. W.D.2009). Conversely,

“Section 577.041.1 provides that an officer's request to submit to a breathalyzer test ‘shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test.’ These warnings have been called the ‘Implied Consent Law....’ ”

Kidd v. Wilson, 50 S.W.3d 858, 862 (Mo.App. W.D.2001) (citation omitted) (quoting Buckley v. Dir. of Revenue, 4 S.W.3d 152, 153 (Mo.App. E.D.1999)).

Pursuant to section 577.041.4, the trial court's review of the revocation of a driver's driving privileges for failure to submit to a breath test is limited to a determination of whether the Director of Revenue established that: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe that the person was driving while intoxicated; and (3) the person refused to submit to the test. If one of these elements is not established, the trial court must order the reinstatement of driving privileges. § 577.041.5. Moreover, when a driver is not informed of the consequences of a test refusal—as Zahner claims he was not—the driver is “unable to make an informed decision whether to take the test, and consequently, [the driver's] refusal cannot form the basis” for revocation. Kidd, 50 S.W.3d at 863; § 577.041.1. To be sure, no test refusal is valid if the officer's request for testing “omits statutorily necessary information,” like the consequences of refusal. Brown v. Dir. of Revenue, 34 S.W.3d 166, 171 (Mo.App. W.D.2000). “[T]he Director must establish that the driver was properly informed under the Implied Consent Law in order to prove that the driver's refusal to take the blood alcohol test warrants revocation of his or her license.” Kidd, 50 S.W.3d at 863.

Spoliation Doctrine

Missouri courts have long recognized the spoliation doctrine, which pertains to the destruction or significant alternation of evidence. If a party intentionally spoliates evidence, the party is subject to an adverse evidentiary inference. “The standard for application of the spoliation doctrine requires that ‘there is evidence of an intentional destruction of the evidence indicating fraud and a desire to suppress the truth.’ ”Prins v. Dir. of Revenue, 333 S.W.3d 17, 20 (Mo.App. W.D.2010) (internal citations omitted).

The spoliation doctrine, though, is generally inapplicable against the Director when police departments destroy evidence because the police do not generally act as the Director's agents, absent evidence showing that the Director “ ‘ “directed, encouraged, or in any other way took part in the destruction.” ’ ” ⁴ Id. at 22 (quoting Baldridge v. Dir. of Revenue, 82 S.W.3d 212, 223 (Mo.App. W.D.2002)).

There is no rule of law, however, that requires the trial court to ignore the destruction of evidence—even if the trial court finds no evidence of fraud, deceit, or bad faith—when the trial court is weighing the credibility of the witnesses in an evidentiary proceeding.

Trial Court's Weighing of the Evidence—Including Witness Credibility

When evidence is contested by disputing a fact in any manner, this Court defers to the trial court's determination of credibility. A trial court is free to disbelieve any, all, or none of that evidence. Appellate courts defer to the trial court on factual issues because it is in...