Barish v. Director of Revenue

• Decision Date: 22 March 1994
• Docket Number: No. WD,WD
• Citation: 872 S.W.2d 167
• Parties: 90 Ed. Law Rep. 478 Paul Christopher BARISH, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. 47601.
• Court: Missouri Court of Appeals

Page 167

872 S.W.2d 167

90 Ed. Law Rep. 478

Paul Christopher BARISH, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. WD 47601.

Missouri Court of Appeals Western District.

March 22, 1994.

Danieal H. Miller, Danieal H. Miller, P.C., Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen Mo. Dept. of Revenue, Jefferson City, for respondent.

Before BERREY, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

Paul Christopher Barish appeals the judgment of the trial court affirming the determination of the Director of Revenue to suspend or revoke his driver's license under § 302.505, RSMo 1986. ¹ The action of the Director resulted from Barish's arrest upon probable cause to believe that he was driving while his blood alcohol level was thirteen-hundredths of one percent or more. Mr. Barish contends on appeal that the trial court erred in sustaining the suspension or revocation because the Director of Revenue failed to prove by competent and substantial evidence (1) that Mr. Barish was arrested by a law enforcement officer with the power and duty to arrest; (2) that a verified report of an arresting law enforcement officer was forwarded to the Department of Revenue; and (3) that the officer who arrested Mr. Barish had probable cause to make the arrest. Mr. Barish also alleges (4) that the trial court erred in admitting the results of a breathalyzer test. The judgment is affirmed.

At approximately 4:00 a.m. on March 6, 1992, Roger Schlude, a University of Missouri Police Department cadet, observed a blue Blazer stalled at the intersection of Maryland and Kentucky Avenues on university property in Columbia, Missouri. Cadet Schlude immediately notified the university police department dispatcher and continued to watch the automobile. After about five minutes, the driver of the stalled vehicle was able to get the car started, and the car continued southward on Maryland. Cadet Schlude followed the vehicle to Laws Hall, a university dormitory, where he observed the vehicle being driven erratically, hitting the bumper as it pulled into the fire lane of the building. Once parked, the driver got out of the car and began unloading passengers and belongings from the vehicle. Cadet Schlude approached the driver while the driver's back was turned towards him and asked the driver "if everything was okay with his vehicle." The driver responded, "Fine." As he was standing near the driver's side door, Cadet Schlude smelled the odor of intoxicants coming out of the car. Cadet Schlude then left the vehicle and made a general announcement to the dispatcher about the vehicle and the odor of intoxicants coming from the automobile.

While on duty March 6, 1992, as a University of Missouri police officer, Kee Groshong received a dispatch report of a stalled vehicle in the intersection of Maryland and Kentucky. Finding no vehicles at the intersection, Officer Groshong began checking the whole area south around the dormitories for the automobile, which had been described to him by the dispatcher as a blue Bronco or Blazer. The officer located the vehicle in a university parking lot. The car was parked with the doors open, and several people were standing around it. After about five minutes, some of the people got back inside the car and the car began moving northbound through the parking lot. Officer Groshong continued to follow the automobile because, as he testified, "[t]he vehicle matched the description of one given out for erratic driving and stalled in the intersection. I wanted to see if it, indeed, was driving erratically." The car left the parking lot, travelling north through a tunnel going underneath Stadium Boulevard and eventually turning back onto Maryland. The vehicle proceeded northbound on Maryland, stopping at the stop sign at the intersection of Maryland and Kentucky and then turning west onto Kentucky. The automobile moved west on Kentucky until it reached Providence Road. At the intersection of Kentucky and Providence, the car turned south onto Providence.

Officer Groshong testified that from the time he began following the car until the car reached Providence Road, he observed no traffic violations and had no cause to stop the vehicle. While he was following the car on Providence Road, however, he determined by pacing the vehicle for approximately two-tenths of one mile that the car was exceeding the speed limit of 50 miles per hour by 5 miles per hour. The officer stopped the vehicle on a state highway with university property on either side and asked the driver, who the officer identified at trial as Mr. Barish, for his license. At that time, Officer Groshong smelled the odor of intoxicants coming from the interior of the automobile and asked Mr. Barish to step out of the car. Officer Groshong noticed that Mr. Barish had bloodshot eyes and was "walking in a swaying sort of manner." The officer asked Mr. Barish to execute several field sobriety tests. Based on Mr. Barish's poor performance of these tests and the officer's general observations of him, the officer opined that Mr. Barish was intoxicated.

After placing Mr. Barish under arrest for driving while intoxicated in violation of § 577.010, Officer Groshong took Mr. Barish to the Columbia Police Department, where he asked Mr. Barish to take a breath analysis test. The breathalyzer test showed that Mr. Barish had a blood alcohol content of 0.178 percent.

The Director of Revenue subsequently suspended or revoked ² Mr. Barish's driver's license under § 302.505 based upon his arrest for driving with a blood alcohol level in excess of thirteen-hundredths of one percent. Mr. Barish then filed a petition for a trial de novo pursuant to § 302.535 which the Circuit Court of Boone County granted. After the trial de novo, the circuit court affirmed the Director of Revenue's order of suspension or revocation. Mr. Barish's motion to amend the judgment was denied. Mr. Barish now appeals the judgment of the trial court.

Review of the trial court's judgment must be made in accordance with the dictates of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Kimber v. Director of Revenue, 817 S.W.2d 627, 629 (Mo.App.1991). The decision of the trial court must be affirmed on appeal unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or applies the law. Id. at 629-30. This court will accept as true "the evidence supporting the circuit court's judgment, as well as all reasonable inferences drawn from such evidence," and will disregard all contrary evidence and inferences. Id. at 630.

I.

Mr. Barish alleges as his first point on appeal that the trial court erred in sustaining the suspension or revocation of his driver's license because the Director of Revenue failed to prove by competent and substantial evidence that Mr. Barish was arrested by a law enforcement officer with the power and duty to arrest. Mr. Barish argues that Officer Groshong was not a law enforcement officer for purposes of §§ 302.505 and 302.510, ³ that the officer acted beyond his jurisdiction and without the power and duty to arrest him for driving while intoxicated, and that, as a result, his arrest was invalid.

Chapter 302, under which Mr. Barish's license was revoked or suspended, does not specify the qualifications a law enforcement official must possess in order for the arrest to be the basis for a suspension or revocation under § 302.505. Section 544.216, which lists in general those persons who may arrest on view without a warrant, fails to include University of Missouri police officers as having the power to arrest. However, § 544.216 does provide that "[t]he power to arrest authorized by this section is in addition to all other powers conferred upon law enforcement officers, and shall not be construed so as to limit or restrict any other power of a law enforcement officer."

Chapter 577, under which Mr. Barish was arrested, provides that a "law enforcement officer" may make a warrantless arrest for a violation of § 577.010 if the arresting officer has reasonable grounds to believe the person to be arrested has violated the section. Section 577.039. Chapter 577 defines the terms "law enforcement officer" and "arresting officer" to include the definition of "law enforcement officer" contained in § 556.061(17), RSMo Cum.Supp.1993. Section 577.001.3. Section 556.061(17), RSMo Cum.Supp.1993, provides that "law enforcement officer" means in part "any public servant having both the power and duty to make arrests for violations of the laws of this state ..." (emphasis added).

Officer Groshong was a public servant with the power and duty to make arrests. A "public servant" is "any person employed in any way by a government of this state who is compensated by the government by reason of his employment." Section 556.061(23), RSMo Cum.Supp.1993. Officer Groshong was a public servant by way of his employment as a University of Missouri police officer. Section 172.350 authorizes the curators of the University of Missouri to appoint "watchmen." Pursuant to § 172.020, the university is a body politic, known by the name of "The Curators of the University of Missouri." It is a public corporation, Todd v. Curators of University of Missouri, 347 Mo. 460, 464, 147 S.W.2d 1063, 1064 (Mo.1941) ⁴, and its governing body, the Board of Curators, is a separate entity given the status of a "public governmental body." Tribune Pub. Co. v. Curators of Univ. of Mo., 661 S.W.2d 575, 584 (Mo.App.1983). Officer Groshong, therefore, was employed by an institution of the state government and compensated by the government for his employment services.

Subsection 1 of § 172.350 defines the role of University of Missouri watchmen to be "to protect property and to preserve peace and good order in the public buildings and upon the campuses,...