Ballard v. Director of Revenue

• Decision Date: 12 September 2000
• Docket Number: WD57804
• Parties: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Jimmy D. Ballard, Appellant, v. Director of Revenue, Respondent Case Number: WD57804 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

Jimmy D. Ballard, Appellant v Director of Revenue, Respondent

Case Number: WD57804

Missouri Court of Appeals Western District

Handdown Date: 09/12/2000

Appeal From: Circuit Court of Gentry County, Hon. W. Rex Beavers, Judge

Counsel for Appellant: Bruce B. Brown

Counsel for Respondent: Evan J. Buchheim

Opinion Summary:

Jimmy D. Ballard appeals the circuit judgment affirming the Director of Revenue's decision suspending his operator's license pursuant to section 302.505.1 for driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more by weight.

REVERSED AND REMANDED.

Court holds:

Ballard claims that the trial court erred in affirming his suspension pursuant to section 302.505.1 because the statute should be interpreted as requiring the Director to prove probable cause to arrest for 21-and-over drivers with a BAC of .10% or more and probable cause to stop for under-21 drivers with a BAC of .02% or more. Thus, age is always a factor. On the other side, the Director argues that the statute creates two separate categories, the first of which is non-age specific and the second of which is only applicable to under-21 drivers who meet certain criteria. Therefore, for all drivers, including under-21 drivers, with a BAC of .10% or more, the Director must prove probable cause to arrest, and for under-21 drivers with a BAC of at least .02%, the Director must prove probable cause to stop.

Section 302.505.1 provides in pertinent part that "[t]he department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight . . . or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was 'driving while intoxicated' in violation of section 577.010, RSMo, or 'driving with excessive blood alcohol content' in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight."

In Riche v. Director of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999), the court stated, "If the driver is under twenty-one years of age, the director must prove that the driver was stopped upon probable cause. As to drivers over age 21, such as [the appellant], the director must prove that the driver was arrested upon probable cause. . . . In setting the standards in section 302.505.1, the legislature has chosen to require that the director prove probable cause for the stop of drivers under twenty-one and probable cause for the arrest of drivers over twenty-one."

As such, the statute provides mutually exclusive means for suspending or revoking the licenses of 21-and-over drivers and under-21 drivers. Such a reading supports the appellant's interpretation of the statute. Being bound by this interpretation, this court finds that the trial court erred in determining that the Director was not required to show probable cause to stop the appellant in order to make a prima facie case for the suspension of his license and suspending on the basis of probable cause to arrest for DWI.

The Director asks the court, should it rule against him on the issue of whether he was required to show probable cause to stop in order to suspend, to reverse and remand for further proceedings to provide him an opportunity to demonstrate the requisite probable cause. However, the Director chose to introduce evidence based on his belief as to correct interpretation of section 302.505.1 rather than introducing evidence that would suffice on either of the two possible interpretations of the statute. As such, the Director did not establish the requisite probable cause to stop sufficient to make a prima facie case for suspension of the appellant's license pursuant to the under-21 provision of section 302.505.1, as interpreted by the supreme court in Riche, requiring reversal.

Opinion Author: Edwin H. Smith, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Ulrich, J., concurs and Ellis, J., concurs in separate opinion.

Opinion:

Jimmy D. Ballard appeals from the judgment of the circuit court affirming the decision of the Director of Revenue (Director) suspending his operator's license, pursuant to section 302.505.1,¹ for driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more by weight.

The appellant raises one point on appeal. He claims that the trial court erred in affirming the administrative suspension of his license because in doing so the court erroneously declared and applied section 302.505.1 in that pursuant to this section, in order to make a prima facie case for suspending his license, the Director was required, but failed, to establish that as an under-21 driver the appellant was stopped upon probable cause to believe that he was driving while intoxicated (DWI), in violation of section 577.010; with an excessive BAC, in violation of section 577.012; or upon probable cause to believe that he had committed a state, county, or municipal traffic offense with a BAC of .02% or more.

We reverse and remand.

Facts

On May 31, 1998, at approximately 1:52 a.m., James R. Burks, a police officer for the City of Albany, Gentry County, Missouri, was exiting the police station when he heard the sound of tires squealing just a block away. Officer Burks observed a red Ford pickup truck, being driven by the appellant, leaving the intersection of Clay and Smith Streets, the direction from which the sound of squealing tires had come. The red pickup was followed by a green and yellow Chevy pickup. As the green and yellow pickup traveled by his location, Officer Burks stopped it and asked the occupants who had been squealing tires. The occupants identified the appellant as the responsible person. Officer Burks then pursued the appellant's vehicle.

Within the next five to ten minutes, Officer Burks located appellant's vehicle sitting double-parked on the west side of the square. After driving around the square, Officer Burks pulled up behind the appellant's vehicle, at which point the appellant began driving toward the east side of the square. Officer Burks then activated his patrol vehicle's lights and stopped the appellant's vehicle. Officer Burks informed him that he had been stopped for squealing his tires at the intersection. At this time, Officer Burks noticed an odor of intoxicants coming from the appellant and proceeded to conduct a field sobriety test. Based upon appellant's failure of the field sobriety test, Officer Burks determined that appellant was intoxicated. He placed him under arrest for violating the Albany city ordinance for DWI.

After arresting the appellant, Officer Burks transported him to the police station, where he performed a breathalyzer test, which showed the appellant's BAC to be .135%. The appellant was under twenty-one years of age at the time of his arrest.

Following his arrest, the Director notified the appellant that his driver's license was suspended pursuant to section 302.505. As a result, the appellant filed a petition for administrative review of his suspension, on which a hearing was held on August 27, 1998. After hearing evidence, the hearing officer rejected the appellant's contention that, in order to make a prima facie case for suspension under section 302.505.1, the Director had the burden to prove probable cause to stop due to the fact that the appellant was under 21 years of age at the time of his arrest. Instead, the hearing officer found that because the appellant had a BAC of .10% or more, the Director only had to show that there was probable cause to arrest. Finding that the Director had made a prima facie case, based on this interpretation of the statute, and that the appellant had not rebutted the same, the decision of the Director suspending the appellant's license was affirmed.

On September 18, 1998, pursuant to section 302.535.1, the appellant filed his petition for a trial de novo in the Circuit Court of Gentry County. The petition was heard on September 20, 1999, by the Honorable William Rex Beavers. At the hearing, the appellant continued to argue that, under the statute, the Director was required to show probable cause to stop, while the Director took the position that the statute treated all drivers with a BAC of .10% or more the same, such that, with respect to the requisite probable cause showing to suspend, he was only required to show probable cause to arrest. The trial court agreed with the Director's position and entered its judgment accordingly, affirming the Director's suspension of the appellant's license.

This appeal follows.

Standard of Review

Our review of the trial court's judgment reinstating the license of the respondent, after it had been suspended for DWI, under section 302.505, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). As such, we must affirm the 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.Endsley v. Dir. of Revenue, 6 S.W.3d 153, 157 (Mo. App. 1999) (citations omitted). "[W]hen any part of the testimony of a witness can reasonably be viewed as inaccurate or inconsistent, the usual rule attends and we give deference to the trial court in its resolution of all witness credibility questions." Id. at 161. However, "deference to a trial court's findings is not required where none of the evidence is controverted and the case is virtually one of admitted facts or where there is no conflict in the...