Barnhart v. McNeill, WD
| Decision Date | 27 June 1989 |
| Docket Number | No. WD,WD |
| Citation | 775 S.W.2d 259 |
| Parties | Howard Thomas BARNHART, Appellant, v. Paul S. McNEILL, Jr., Missouri Director of Revenue, Respondent. 41675. |
| Court | Missouri Court of Appeals |
James P. Valbracht, Cleaveland, Macoubrie, Cox, Valbracht and Elliott, Chillicothe, for appellant.
Sandra A. Mears, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Before TURNAGE, P.J., and CLARK and FENNER, JJ.
The driving privileges of Howard Thomas Barnhart were revoked by the director of revenue for a period of one year, pursuant to § 577.041, RSMo Supp.1988, upon Barnhart's refusal to submit to a urine test after he had been placed under arrest for careless and imprudent driving and driving while intoxicated. The circuit court affirmed the revocation and Barnhart appeals, contending that the revocation was erroneously imposed because the arresting officer failed to inform appellant that evidence of his refusal to take the test could be used in a criminal prosecution under §§ 577.010 or 577.012, RSMo 1986. 1
To understand the point at issue in this case, it is necessary to compare § 577.041.1 before and after the 1987 amendment. In its previous form, the statute read:
If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given. * * * Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year * * *.
(Omitted portions of the statute are irrelevant to issues on this appeal).
The 1987 amendment supplied additions and, as applicable to this case, now reads (with the additions emphasized):
If a person under arrest refuses upon the request of the arresting officer to submit to any test allowed under Section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding under Section 577.010 or 577.012. The request of the arresting 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 his refusal to take the test may be used against him and that his license may be revoked upon his refusal to take the test * * *.
From the above, it is apparent that the 1987 amendment accomplished the following changes, (1) the words "tests allowed under § 577.020" were substituted for "chemical test," (2) evidence of a refusal to submit to a test was authorized for use in a criminal prosecution for driving while intoxicated or driving with excessive blood alcohol content, and (3) the arresting officer was required to inform the person of the possible consequences under (2) above.
It was stipulated in this case that the arresting officer did not inform Barnhart that his refusal to submit to the urine test could be used as evidence were he criminally charged under §§ 577.010 or 577.012. He contends that this defect precludes revocation of his license under § 577.041.1, RSMo Supp.1988. The question appears to be one of first impression.
There is no indication that Barnhart has been or will be subjected to any criminal prosecution as a result of the incident in question. No issue arises, therefore, as to whether Barnhart's refusal to take the test must be excluded from evidence because of lack of a warning that consequence could ensue. The sole penalty involved is license revocation for one year. The issue is limited to require a decision only on the question of whether the statute requires a warning of possible consequences in a criminal prosecution before the penalty of a license revocation may be imposed. This, in turn, requires that we ascertain the intent of the General Assembly in enactment of the 1987 amendment to § 577.041.
In considering what the legislature intended by its enactment, we are guided by the propositions that the General Assembly is presumed to be aware of existing declarations of law and the construction of existing statutes when it enacts a law on the same subject, and also that a new statute must be construed in light of the defect it sought to remedy. State v. Coor, 740 S.W.2d 350, 354 (Mo.App.1987). In the present case, the defect and the remedy are abundantly clear as is the purpose for the 1987 amendment.
The history of this subject begins with the case of City of St. Joseph v. Johnson, 539 S.W.2d 784 (Mo.App.1976). There, the court held evidence of refusal to take a breathalyzer test inadmissible in a prosecution for operating a...
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State v. Cox
...of existing declarations of law and the construction of existing statutes when it enacted a law on the same subject. Barnhart v. McNeill, 775 S.W.2d 259, 260 (Mo.App.1989). If possible, a statute's intent should first be ascertained from its plain language. State v. Davis, 675 S.W.2d 410, 4......
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...when enacting SB 380. ARO Systems, Inc. v. Supervisor of Liquor Control, 684 S.W.2d 504, 508 (Mo.App.1984); Barnhart v. McNeill, Jr., 775 S.W.2d 259, 260 (Mo.App.1989). One method the legislature uses to signal its intent as to what provisions are severable is to segregate a bill into separ......
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...accused that his refusal to take any blood-alcohol test may be used against him arises only by reason of the statute. Barnhart v. McNeill, 775 S.W.2d 259, 261 (Mo.App.1989). The statute contains no suggestion that if an officer fails to inform him that evidence of the refusal may be used, t......