Green v. Dir. of Revenue

Decision Date18 December 2012
Docket NumberNo. WD 74939.,WD 74939.
Citation386 S.W.3d 858
PartiesJames Kevin GREEN, Appellant, v. DIRECTOR OF REVENUE, Respondent.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

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

Samuel E. Buffaloe, Jefferson City, MO, for respondent.

Before: ALOK AHUJA, P.J., and VICTOR C. HOWARD and CYNTHIA L. MARTIN, JJ.

ALOK AHUJA, Judge.

The Department of Revenue issued a notice revoking James Green's driving privileges under § 577.0411 on July 24, 2011, based on his refusal to submit to a chemical test following his arrest for operating a motorcycle while intoxicated. Green sought judicial review of the revocation decision in the Circuit Court of Clay County. The circuit court upheld the revocation of Green's driving privileges. Green appeals. We affirm.

Factual Background

Missouri State Highway Patrol Trooper Kirby Dunfee stopped Green for exceeding the posted speed limit on his motorcycle at 12:16 a.m. on July 24, 2011. The stop occurred on northbound Interstate Highway 29, north of U.S. Highway 169, in Clay County. Trooper Dunfee noticed a strong odor of alcohol on Green's breath, and that Green had bloodshot eyes and exhibited poor balance and slurred speech. Trooper Dunfee asked Green if he had had anything to drink; Green responded that he had “had a couple earlier.” Green failed three field sobriety tests, and a preliminary breath test indicated the presence of alcohol. Trooper Dunfee arrested Green for driving while intoxicated and transported him to the Clay County Detention Center.

Trooper Dunfee informed Green of Missouri's implied consent law, §§ 577.020 to 577.041, and asked Green if he would submit to a breath test. Green asked to speak with an attorney. Trooper Dunfee told Green that he would have twenty minutes to contact an attorney. See § 577.041.4. Green gave Trooper Dunfee the name and number of an attorney, Steve Fuller, to contact. Trooper Dunfee dialed the number and handed the telephone to Green. Green spoke to the person on the other end of the line for several minutes. At the conclusion of Green's telephone conversation, he told Trooper Dunfee that he had spoken to attorney Fuller. Trooper Dunfee again asked Green whether he would submit to a chemical test of his breath. Green stated, “I'm not sure.” Trooper Dunfee told Green that he needed a “yes or no” answer, and Green then replied “no.” Green's refusal occurred thirteen minutes after his request to contact an attorney. Because of Green's refusal to submit to chemical testing, Trooper Dunfee issued Green a notice on behalf of the Department of Revenue, revoking his driving privileges.

Green filed a petition seeking judicial review of the revocation of his driving privileges in the Circuit Court of Clay County on August 8, 2011. The trial court held an evidentiary hearing on the petition on January 23, 2012. At the hearing, Green stipulated that he was placed under arrest and that the arresting officer had reasonable grounds to believe that he was driving while intoxicated; the remaining issue for trial was whether Green had unlawfully refused to submit to a test. The only witness at the hearing was Trooper Dunfee. Following the hearing, the trial court entered a judgment upholding the revocation of Green's driving privileges on February 3, 2012. Green appeals.

Standard of Review

In appeals from a court-tried civil case, 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To set aside a judgment as “against the weight of the evidence,” this Court must have a firm belief that the judgment is wrong. Id.

White v. Dir. of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010).

Analysis

Green's argues that he was denied his statutory right to attempt to consult with an attorney before being asked to submit to a chemical test, and therefore his refusal to submit to the test cannot justify revocation of his driving privileges. We disagree.

Under § 577.020.1,

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.019 to 577.041, a chemical test or 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 pursuant to the following circumstances:

(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition.2 ...

Section 577.041.3 requires the Director of the Department of Revenue to revoke the driving privileges of an individual who refuses to consent to a chemical test after being arrested on reasonable grounds to believe that the individual was driving while intoxicated.

In a proceeding under section 577.041 on facts as those presented here, the trial court shall determine only: (1) whether or not the person was arrested;

(2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and (3) whether the person refused to submit to the test.Hunter v. Dir. of Revenue, 75 S.W.3d 299, 302 (Mo.App. E.D.2002) (citations and internal quotation marks omitted); see also § 577.041.4. Given Green's stipulation that he was arrested, and that Trooper Dunfee had reasonable grounds to believe that he had been driving while intoxicated, the only issue remaining is whether Green unlawfully refused to be tested. “A ‘refusal,’ for purposes of § 577.041, means declining of one's own volition to submit to a chemical test authorized by § 577.020 when requested by an officer to do so.” Kotar v. Dir. of Revenue, 169 S.W.3d 921, 925 (Mo.App. W.D.2005) (citing Mount v. Dir. of Revenue, 62 S.W.3d 597, 599 (Mo.App. W.D.2001)).

A driver's request to speak to an attorney gives the driver additional time within which to decide whether to submit to a chemical test.

Section 577.041.1 RSMo 2000, provides in part that “If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.” When a person conditions a refusal on consulting with an attorney, but is not given a reasonable opportunity to attempt to do so, the person is not deemed to have refused to submit to a chemical test. A reasonable opportunity has been legislatively defined by section 577.041.1 as twenty minutes.

Bacandreas v. Dir. of Revenue, 99 S.W.3d 497, 500 (Mo.App. E.D.2003) (other citations omitted). The limited right to attempt to contact an attorney recognized by § 577.041.1 is purely of statutory origin; a driver has no constitutional right to consult with an attorney before deciding whether to submit to a blood-alcohol test. Akers v. Dir. of Revenue, 193 S.W.3d 325, 328–29 (Mo.App. W.D.2006).

Where a driver requests to contact an attorney, but is not given an opportunity to do so after being advised of the informed consent law, the law enforcement officer has violated § 577.041.1, and the driver's refusal to submit to testing cannot justify revocation of his driving privileges. See, e.g., Norris v. Dir. of Revenue, 304 S.W.3d 724, 726–27 (Mo. banc 2010); Weil v. Dir. of Revenue, 304 S.W.3d 768, 770 (Mo.App. E.D.2010); Schussler v. Fischer, 196 S.W.3d 648, 653–54 (Mo.App. W.D.2006); Mount, 62 S.W.3d at 599–600.

This does not mean, however, that the police must wait twenty minutes in every case in which a driver requests to contact an attorney. Where a driver is given an opportunity to contact an attorney after requesting to speak with one, § 577.041.1 is satisfied if “the twenty minute statutory period expires or the driver abandons the attempt.” McMaster v. Lohman, 941 S.W.2d 813, 817 (Mo.App. W.D.1997) (emphasis added). “Abandonment occurs where the person made all the attempts he or she wants to make and reaches a decision to refuse to submit to the test before the twenty minutes has elapsed.” Snider v. Dir. of Revenue, 314 S.W.3d 841, 844 (Mo.App. S.D.2010) (quoting Bacandreas, 99 S.W.3d at 500). Abandonment is established when “the driver ceases attempting to contact a lawyer and indicates that he intends to make no additional attempts to contact an attorney within the twenty minute period.” McMaster, 941 S.W.2d at 817 (citing Wall v. Holman, 902 S.W.2d 329, 331 (Mo.App. W.D.1995)).

Section 577.041 does not mandate that an arresting officer wait until the twenty-minute period has expired if the person has made all the attempts he or she wants to make and reaches a decision to refuse to submit to the test before the twenty minutes has elapsed. To hold otherwise would give a motorist an absolute right to delay the process for twenty minutes even if the person ceases attempting to contact a lawyer and indicates exactly what he intends to do.

Krakover v. Dir. of Revenue, 128 S.W.3d 589, 593–94 (Mo.App. E.D.2004) (citations and internal quotation marks omitted).

Whether a driver in a particular case abandoned or concluded his efforts to contact an attorney is a factual issue, on which we generally defer to the trial court's findings. Long v. Dir. of Revenue, 65 S.W.3d 545, 550 (Mo.App. W.D.2001) (citing Wall, 902 S.W.2d at 331).

In this case, substantial evidence in the record supports the trial court's determination that Green fully availed himself of his opportunity to contact an attorney before refusing to submit to a blood-alcohol test.3 Trooper Dunfee read Green the Missouri Implied Consent Law, and asked Green to submit to a...

To continue reading

Request your trial
5 cases
  • State v. Jacobs, SD 32107.
    • United States
    • Court of Appeal of Missouri (US)
    • September 13, 2013
    ...Defendant acted knowingly. A person “acts knowingly ... when he is aware of the nature of his conduct[.]” [421 S.W.3d 514]Younger, 386 S.W.3d at 858 (quoting § 562.021.3). Knowing failure to register may be inferred from facts showing the offender's history of past compliance with the regis......
  • State v. Younger, WD 74675.
    • United States
    • Court of Appeal of Missouri (US)
    • December 18, 2012
    ...beyond a reasonable doubt that Younger had changed his residence and was obligated by SORA to notify the Lafayette County authorities. [386 S.W.3d 858]Younger's Knowing Failure to Notify Younger argues that there was insufficient evidence to establish that he knowingly failed to comply with......
  • Rials v. Dir. of Revenue, SD 33830
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 2016
    ...no constitutional right to consult with an attorney before deciding whether to submit to a blood-alcohol test.” Green v. Dir. of Revenue, 386 S.W.3d 858, 861 (Mo.App.W.D.2012) (citing Akers v. Dir. of Revenue, 193 S.W.3d 325, 328–29 (Mo.App.W.D.2006) ).FactsWe defer to the trial court all o......
  • State v. Shands
    • United States
    • Court of Appeal of Missouri (US)
    • February 21, 2023
    ...change of residence and failure to notify the proper authorities of the change." Moore, 508 S.W.3d at 150; see also Younger, 386 S.W.3d at 858. After reviewing the record in the light most favorable to the trial court's finding of guilt, we conclude that the evidence was sufficient to prove......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT