Allison v. Dir. Revenue

• Decision Date: 01 August 2017
• Docket Number: WD 79841.
• Citation: 525 S.W.3d 127
• Parties: Roxanne ALLISON, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

525 S.W.3d 127

Roxanne ALLISON, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

WD 79841.

Missouri Court of Appeals, Western District.

OPINION FILED: August 1, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied September 5, 2017

Andrew S. Garnett, Mexico, MO, for appellant.

Rachel M. Jones, Jefferson City, MO, for respondent.

Before Special Division: Zel M. Fischer, Special Judge, Presiding, Karen King Mitchell, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Roxanne Allison ("Allison") appeals from a judgment sustaining the revocation of her driving privileges based on her refusal to submit to a chemical test of her breath to determine the alcohol content of her blood. We affirm.

Factual and Procedural Background¹

On November 5, 2015, Trooper Shaun Brazas ("Trooper Brazas") arrested Allison for driving while intoxicated. Trooper Brazas transported Allison to the Callaway County Jail. Upon arriving at the jail, and while Allison remained handcuffed in the patrol car, Trooper Brazas read Allison the implied consent portion of the Alcohol Influence Report. Specifically, Trooper Brazas told Allison that he had reasonable grounds to believe that she was driving a motor vehicle while in an intoxicated condition; that to determine the alcohol content of her blood, he was requesting her to submit to a chemical test of her breath; that if she refused to take the breath test, her driver's license would be immediately revoked for one year; and that evidence of a refusal to take the test could be used against her at prosecution in a court of law.

Trooper Brazas then asked Allison, "Having been informed for [sic] the reasons for requesting the test, will you take the test, yes or no?" Allison responded by asking for a moment.

After a brief pause, Allison said that she could not believe the trooper was doing this to her. Trooper Brazas repeated his question, "Having been informed for [sic] the reasons for requesting the test, will you take the test, yes or no?" Allison asked for another moment to answer. After another pause, Trooper Brazas asked, "Yes or no?" again, and told Allison that it would be a refusal if she did not answer. He repeated, "Yes or no?" Allison did not respond "yes" or "no."

Trooper Brazas asked Allison if she understood the consequences of a refusal to submit to a breath test. After she stated that she maybe did not understand, Trooper Brazas repeated the implied consent warning. Again, he asked, "Will you take the test, yes or no?" Allison replied that her face itched. Trooper Brazas again repeated the question. Allison asked whether her license would be taken for a year if she did not take the test, and Trooper Brazas confirmed that it would.

Following another brief pause, Trooper Brazas again asked if Allison would take the test, "Yes or no?" He also stated that he was not trying to trick her. Allison replied that she knew he was not trying to trick her, and that her face itched. Trooper Brazas asked Allison again, "Will you take the test, yes or no?" He also restated that if she failed to answer, then he would treat the failure to answer as a refusal. Allison replied that she was not trying to fail to answer. Trooper Brazas replied, "So, yes or no?" Allison did not give a yes-or-no response.

Trooper Brazas indicated an intent to deem Allison's non-response as a refusal to submit to a breath test. He began to exit the patrol car. Allison tried to explain, "That's not what I said." Trooper Brazas again asked, "Yes or no?" Allison did not respond with a yes-or-no answer.

Approximately three to four minutes transpired between Trooper Brazas's initial request that Allison submit to a breath test and when he indicated his intent to deem her non-response a refusal. During that period of time, Allison never stated that she would or would not take the requested test. Allison never requested the opportunity to contact an attorney.²

As a result of Allison's deemed refusal to submit to the requested breath test, the Director of Revenue ("Director") revoked Allison's driving privileges for one year pursuant to 577.041.³ Allison filed a petition for review of her license revocation. She and Trooper Brazas testified at a hearing on the matter. Dashboard camera and in-car video of Allison's arrest was submitted into evidence. The trial court entered its judgment sustaining the revocation of Allison's driving privileges, finding that she was offered a breath test and refused same.

This timely appeal follows.

Standard of Review

"In a driver's license revocation 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.’ " Rader v. Dir. of Revenue , 490 S.W.3d 778, 779 (Mo. App. W.D. 2016) (quoting White v. Dir. of Revenue , 321 S.W.3d 298, 307-08 (Mo. banc 2010) ). "When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence." White , 321 S.W.3d at 308. "A trial court is free to disbelieve any, all, or none of that evidence." Id.

Analysis

In her sole point on appeal, Allison argues that the trial court erred in denying her petition for review of the revocation of her driving privileges because the judgment "erroneously declared and applied the law" as Allison did not refuse to submit to a chemical breath test under the circumstances because not enough time elapsed to deem her non-response a refusal. Though her point relied on is framed in terms of legal error, it is plain from the argument portion of the brief that Allison is instead contending that "there was not substantial evidence presented at trial that [Allison] refused to consent to a chemical test of her breath." [Appellant's Brief, p. 13] "To prevail on the substantial-evidence challenge, [Allison] must demonstrate that there is no evidence in the record tending to prove a fact that is necessary to sustain the circuit court's judgment as a matter of law." Ivie v. Smith , 439 S.W.3d 189, 200 (Mo. banc 2014). Allison has not sustained this burden.

Pursuant to Missouri's implied consent law, "[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to ... 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" under certain circumstances, including if they are arrested on reasonable grounds to believe they were driving while intoxicated. Section 577.020.1(1). "If a driver refuses to submit to chemical analysis to determine [her] blood alcohol content, that driver's license will be subject to revocation pursuant to section 577.041." Rader , 490 S.W.3d at 779. However, "[r]evocation is conditioned upon an officer making a ‘statutorily sufficient "request" ’ that a driver submit to chemical testing." Mayfield v. Dir. of Revenue , 100 S.W.3d 847, 850 (Mo. App. S.D. 2003) (quoting McMaster v. Lohman , 941 S.W.2d 813, 816 (Mo. App. W.D. 1997) ). The content of a statutorily sufficient request is described in section 577.041.1, which provides that:

[t]he request of the officer 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 refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test.

If a driver's license is revoked based upon refusal to submit to a requested test, the driver may petition for a hearing before a circuit or associate circuit court in order to review the license revocation. Section 577.041.4. "At the hearing, the Director has the burden of proving all the requisite elements for upholding revocation." Kotar v. Dir. of Revenue , 169 S.W.3d 921, 924 (Mo. App. W.D. 2005). The Director must prove the following by a preponderance of the evidence: "(i) that the person was arrested or stopped; (ii) that the arresting officer had reasonable grounds to believe that the person was operating a motor vehicle under the influence of drugs or alcohol; and (iii) that the person refused to submit to chemical analysis." Rader , 490 S.W.3d at 779 (citing section 577.041.4).

Allison does not challenge that she was arrested or that Trooper Brazas had reasonable grounds to believe that she was driving while intoxicated. Allison does not challenge that Trooper Brazas made a statutorily sufficient request that she submit to a chemical breath test. Allison challenges only the determination that her non-response to Trooper Brazas's request constituted a refusal.

"[A] refusal to submit to a chemical test need not be shown by the driver's express refusal upon the initial request." Hursh v. Dir. of Revenue , 272 S.W.3d 914, 917 (Mo. App. W.D. 2009) (quoting Hawk v. Dir. of Revenue , 943 S.W.2d 18, 20 (Mo. App. S.D. 1997) ). "A ‘refusal’ occurs when a person fails, of his or her own volition, to do what is necessary in order for the test at issue to be performed." Bruce v. Dep't of Revenue , 323 S.W.3d 116, 121 (Mo. App. W.D. 2010). "The issue of whether a driver has refused to submit to a chemical analysis test is a question of fact to be decided by the trial court." Rader , 490 S.W.3d at 780 ; accord Hursh , 272 S.W.3d at 917 ; Honeyfield v. Dir. of Revenue , 140 S.W.3d 192, 195 (Mo. App. S.D. 2004).

Here, the trial court found that Allison refused to submit to the requested chemical breath test. Though the trial court's judgment does not explain this conclusion, "[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); see Harvey v. Dir. of Revenue , 371 S.W.3d 824, 828 (Mo. App. W.D. 2012) (en banc).⁴ Furthermore, "[w]e will affirm the trial court's judgment on any basis supported by the record." Harvey , 371 S.W.3d at 828 (quoting Hirsch v....