Storck v. Dir. of Rev., ED78926

• Decision Date: 30 October 2001
• Docket Number: ED78926
• Citation: 59 S.W.3d 545
• Parties: Ronald H. Storck, Respondent, v. Director of Revenue, State of Missouri, Appellant. ED78926 Missouri Court of Appeals Eastern District
• Court: Missouri Court of Appeals

Ronald H. Storck, Respondent v Director of Revenue, State of Missouri, Appellant

ED78926

Missouri Court of Appeals Eastern District

10/30/2001

Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen

Counsel for Appellant: John W. Spencer

Counsel for Respondent: Charles E. Lampin and Michael J. Fagras

Opinion Summary:

The director of revenue appeals the court's judgment reinstating the driving privileges of Ronald H. Storck after the director revoked them pursuant to section 577.041, RSMo Cum. Supp. 1999.

Division Three holds: The court did not err in reinstating Storck's driving privileges because there was insufficient evidence that the officer had reasonable grounds to arrest Storck for driving while intoxicated.

Teitelman, P.J., and Ahrens, J., concur.

Gary M. Gaertner, Sr., Judge

Appellant, Director of Revenue, ("director"), appeals from the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of respondent, Ronald H. Storck, ("driver"), after director revoked them pursuant to section 577.041, RSMo Cum.Supp.1999. ¹ We affirm.

On October 5, 1999 an officer of the St. Louis County Sheriff's Department signed an affidavit alleging that driver refused to take a chemical test and pursuant to section 577.041, driver received notice of the loss of his driving privileges. Driver's loss of driving privileges was to become effective on October 19, 1999, and was to last for a period of one year. Driver denies the allegation contained in the affidavit, which was forwarded to the director. The suspension of driver's driving privileges was stayed and the case was heard in St. Louis County Circuit Court on November 3, 2000.

At trial, driver was the only witness to testify. However, director offered into evidence Exhibit 1, which contained the original stay order filed in the case, a copy of the petition for review, driver's Missouri driving record, a copy of the fifteen-day driving permit issued to driver, and a copy of the alcohol influence report. The following evidence was adduced at trial.

On October 5, 1999, at 4:15 p.m., St. Louis County Police Officer Leonard Sanders ("officer") was dispatched to an automobile accident that occurred at Bennington Place and Fee Fee Road. Upon arrival, officer interviewed Gregory Cummins who stated his vehicle was struck from behind by a brown Honda Civic that belonged to driver. While investigating the accident, officer's report indicated driver was unsteady in his walk and his speech was slurred.

Officer asked driver if he had been drinking alcohol, to which driver denied. According to driver, officer told him that he smelled alcohol on driver's breath. However, officer did not indicate in his report that driver's breath smelled of alcohol. Officer asked driver to submit to several standardized field sobriety tests.

Officer's alcohol influence report denotes that driver failed the walk-and-turn test. Also, driver hopped and put his right foot down on the one-leg stand test. On the gaze nystagmus test, driver had no smooth movement with either eye, had distinct nystagmus at maximum deviation with both eyes, and had onset before forty-five degrees with some white showing. Finally, driver stopped for approximately five seconds at the letter "L" when he was asked to recite the alphabet. According to driver these tests were performed "right there in the middle of the intersection" of a thoroughfare noted for heavy traffic. Driver believed, pursuant to the instructions he was given, that he performed the walk-and-turn test satisfactorily. Driver also believed he adequately performed the gaze nystagmus test. Driver did not recall being administered the alphabet test.

Officer's alcohol influence report further noted driver's eyes were glassy and staring and his clothing was mussed and soiled by dirt. Based on officer's observations and driver's performance, officer believed driver was intoxicated. Officer decided to transport driver to St. Louis County Intake in order to perform a chemical breath test.

Driver testified that he explained to officer that he was heading home from his work as a cement truck driver. Driver stated he had been without sleep for two days due to a marital dispute with his wife. Driver further explained his wife had left him and he had been trying to locate her. Officer left the question of when driver last slept blank on the alcohol influence report. Driver testified he was emotionally distraught but had not been drinking at the time of the incident.

Officer administered a breath test that registered zero percent blood alcohol content. According to driver, officer administered a second breath test that again registered zero percent blood alcohol content. Driver testified he took the test "two or three times." There was no indication driver's blood alcohol content ever registered more than zero percent. Driver stated officer never informed him of the implied consent law prior to administering the breath test. However, officer's report states that he read the implied consent law to driver prior to administering the breath test.

At this point, officer requested driver submit to a blood test. Driver testified that officer "thought [driver] was on something and [officer] wanted to take [driver] to the hospital [to draw blood]." Driver stated he became perturbed because the reason officer had him perform the breath tests was because officer said he smelled alcohol on his breath. Driver stated he would agree to submit to a urine test, but would not submit to a blood test. According to driver, he reiterated to officer the circumstances regarding his sleep deprivation and that he was deathly afraid of needles. Driver testified that after he refused to give blood, officer read him the implied consent law.

Upon driver's refusal to submit to the blood test, driver was issued two traffic tickets for following too close and for operating a motor vehicle in an intoxicated condition.

The trial court found that officer did not have probable cause to arrest driver for driving while intoxicated and that driver did not refuse to submit to a chemical test of his breath but did refuse to submit to a chemical test of his blood. The trial court ordered the revocation of driver's driving privileges to be rescinded. Director appeals.

On review, 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. Glastetter v. Director of Revenue, 37 S.W.3d 405, 407 (Mo.App.E.D. 2001). This court views the evidence in the light most favorable to the trial court's judgment and we deem all facts to have been found in accordance with the result reached by the trial court. Duffy v Director of Revenue, 966 S.W.2d 372, 379 (Mo.App.W.D. 1998). A trial court is afforded wide discretion even if there is evidence that would support a different result. Id. "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." Id. (quoting Hawk v. Director of Revenue, 943 S.W.2d 18, 20 (Mo.App.S.D. 1997)).

Director's sole point on appeal contends the trial...