Auck v. Dir. of Revenue
| Decision Date | 23 February 2016 |
| Docket Number | No. ED 102570,ED 102570 |
| Citation | 483 S.W.3d 440 |
| Parties | Michael Auck, Respondent, v. Director of Revenue, State of Missouri, Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Rachel M. Jones, Missouri Department of Revenue, P.O. Box 475, 301 W. High Street, Jefferson City, MO 65105–0475.
Attorney for Respondent(s): Chastidy Rebecca Dillon–Amelung, 8000 Maryland Avenue, Suite 440, Clayton, MO 63105, Dill, Bamvakais & Newsham, P.C., Daniel Joseph Bruntrager, Co–Counsel, 225 South Meramec Ave., Suite 1200, Clayton, MO 63105.
Mary K. Hoff
The Director of Revenue of the State of Missouri (the Director) appeals from the trial court's entry of judgment reinstating the driving privileges of Michael Auck (Driver) after his privileges were revoked by the Director pursuant to Section 577.041 RSMo 2000
.1 We reverse and remand.
On January 1, 2014, Officer Scheetz and Sergeant Hagen of the Sunset Hills Police Department were dispatched to Helen Fitzgerald's pub regarding a peace disturbance involving a vehicle that almost struck a pedestrian. Officer Johnson, also of the Sunset Hills Police Department, who was on an unrelated call at the Days Inn at the same address, responded to the pub after completing his assignment there. Officer Johnson then contacted Officer Scheetz, who informed him that he had obtained statements from three employees of the pub all of whom reported observing a person driving a silver truck out of the bar's parking lot, and observing that same person return to the parking lot in the truck approximately 15 minutes later, at which time one of the witnesses contacted the Sunset Hills Police Department. The three witnesses' written statements were collected and kept as evidence.
One of the witnesses, Gregory Waltman (Waltman), identified a silver truck as the vehicle being driven by Driver. Officer Johnson asked Waltman if he could identify the driver of the truck, and Waltman immediately looked in the direction of Driver, who was standing next to Officer Scheetz, pointed at Driver, and stated "the gentlemen next to the Sunset Hills Police Officer (Scheetz)."
Officer Johnson then approached Driver and informed him that people were saying he was driving recklessly in the parking lot. Officer Johnson noticed Driver was speaking loudly, used profanity, and seemed angry. Driver's speech was slurred, his eyes were watery and bloodshot, he smelled strongly of alcohol, and he was swaying considerably from side to side. When asked why people were saying he was driving recklessly, Driver stated he parked his truck a while ago and had been at the bar all night. Driver stated he did get into an argument with a friend earlier, but that "he never left the parking lot that he could remember."
Officer Johnson asked Driver if he had consumed any alcohol before he drove away from the pub. Driver did not deny that he drove away from the bar, and replied, "Of course I have been drinking it is New Years." Officer Johnson then asked him if he had consumed any intoxicants after he returned to the pub. Driver replied that he did not because the bouncers would not let him back in the bar. However, Driver did not deny that he had returned to the bar in his vehicle. Based on Officer Johnson's observations of Driver, he asked Driver to perform a series of field sobriety tests. Driver performed poorly on each test and refused to perform the alphabet and counting tests.
In his report, Officer Johnson stated: "[b]ased on witness statements that [Driver] was driving his motor vehicle recklessly, admission to drinking alcohol, and the strong odor of intoxicants on his breath, his slurred speech, and the results of the field sobriety tests, I advised [Driver] he was under arrest for Driving While Intoxicated and Careless and Reckless driving on a parking lot." Officer Johnson then transported Driver to the Sunset Hills Police Department, read Driver the Missouri's Implied Consent warning from the Alcohol Influence Report, and Driver refused to submit to a breath test.
On January 1, 2014, the Director revoked Driver's license for refusing to submit to a chemical test in connection with his operation of a motor vehicle while allegedly intoxicated. On January 10, 2014, Driver filed a Petition for Review with the trial court. At trial, on November 19, 2014, the Director offered Exhibit A, including a copy of Officer Johnson's police report, into evidence. Driver made the following objection:
, which is the Missouri Supreme Court case that talks about hearsay, but in Doughty, all of those witnesses in there, when they submitted it on the record, were police officers who do have a business duty to transmit the information they get at the time—at or near the time of their investigation or their arrest.
This case has been tried before in a criminal matter. Those lay witnesses were presented before. I don't anticipate—I don't see any of those lay witnesses in court today. As it relates to those third party statements made by the lay witnesses, I would like to preserve my objection as those being hearsay.
The Director responded that there was no objection to the civilian witnesses with the exception of statements by Waltman whose statements were permissible to establish probable cause for the arrest. The Traffic Commissioner indicated that she would sustain the objection with regard to the third party witnesses only if they were being offered for the truth of the matter asserted.
The Director then called Officer Johnson as a witness. The Director asked him whether he spoke to Waltman, and he replied that he did. The Director then asked him: "What, if anything, did your conversation with Mr. Waltman entail?" Driver made the following hearsay objection: "I would just object to the hearsay, Your Honor." The Commissioner stated: The Director replied: "It's offered to show the probable cause for the witness that Petitioner was driving." The Commissioner then sustained the objection.
On cross-examination, Officer Johnson testified he did not personally observe Driver driving. At the close of trial, Driver argued that there was no evidence to support a finding that he was driving that night, and that there was therefore no probable cause for the arrest that would give rise to Driver being requested to submit to a chemical analysis of his blood
alcohol content.
On December 16, 2014, the trial court issued its judgment finding that the arresting 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 because This appeal follows.
We review a trial court's judgment reinstating driving privileges following an administrative suspension or revocation under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)
. White v. Director of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). This Court will affirm the decision of the trial court if it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously or declare or apply the law. Id. We review declarations of law de novo. Moore v. Director of Revenue, 351 S.W.3d 286, 287 (Mo. App. W.D. 2011).
The Director raises three points on appeal that are interrelated. For ease of discussion, we address these points together. Essentially, the Director argues that the trial court erred in sustaining Driver's hearsay objections and in finding there was no admissible evidence of Driver's operation of a motor vehicle and in reinstating his driving privileges. We agree.
On judicial review of administrative revocation of a driver's license for failure to submit to a breath test, the proper issue for the trial court to consider was whether the police officer, given the facts and circumstances known to him at the time, had reasonable grounds to believe that the driver drove while intoxicated, not whether the driver actually drove while intoxicated. Jarboe...
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