Bess v. Dir. of Revenue, SD 30805.
| Citation | 345 S.W.3d 380 |
| Decision Date | 28 July 2011 |
| Docket Number | No. SD 30805.,SD 30805. |
| Parties | Kristopher R. BESS, Respondent,v.DIRECTOR OF REVENUE, Appellant. |
| Court | Court of Appeal of Missouri (US) |
345 S.W.3d 380
Kristopher R. BESS, Respondent,
v.
DIRECTOR OF REVENUE, Appellant.
No. SD 30805.
Missouri Court of Appeals, Southern District, Division Two.
July 28, 2011.
[345 S.W.3d 381]
Trevor Steven Bossert, Jefferson City, MO, for Appellant.Timothy R. Cisar, Lake Ozark, MO, for Respondent.ROBERT S. BARNEY, Judge.The Director of Revenue (“the Director”) appeals from a judgment entered by the trial court which reinstated the
[345 S.W.3d 382]
driving privileges of Kristopher R. Bess (“Driver”). In her sole point relied on the Director maintains the trial court erred in reinstating Driver's driving privileges, which had been revoked due to his refusal to submit to a breath test, “based on the alleged failure of [the Missouri Department of Transportation (“MoDOT”) ] to promulgate regulations because the revocation was proper, in that the stipulated evidence established that [Driver] was arrested with reasonable grounds to believe that he was driving while intoxicated and that he refused the test.”The record reveals that Driver was arrested by “Officer Donna Ford of the Camden County Sheriff's Department” on March 11, 2010, for driving while intoxicated, a violation of section 577.010, RSMo 2000. At that time Driver refused to submit to a chemical test of his blood for alcohol and his license was automatically revoked for one year by the Director. See §§ 577.020, RSMo Cum.Supp.2006, and 577.041, RSMo Cum.Supp.2009.
On March 26, 2010, Driver filed his “Petition to Review [of] Revocation of Driver's License and Application for Stay Order” in which he alleged he was not properly arrested; there were no reasonable grounds to believe he had been driving while intoxicated; he did not refuse to submit to the breath test; and the request to submit to the breath test and the ramifications of his rejection of that request were not properly explained to him. He asked for reinstatement of his driving privileges as well as a stay on his pending revocation until a hearing on the matter could be held.1
On June 30, 2010, Driver filed a motion objecting to the “admission of any evidence related to [Driver's] alleged ‘refusal’ to submit to a breath test....” In this motion, Driver maintained that in January of 2007, then Governor Matt Blunt “signed Executive Order 07–05, which transferred, among other things, all authority, power, duties, and functions relating to the Breath Alcohol Program [ (“BAP”) ] from the Missouri Department of Health and Senior Services [ (“MDHSS”) ] ... to [MoDOT].” He asserted that after this transfer was made MoDOT was required to “approve satisfactory techniques, devices, equipment, or methods related to breath alcohol testing ...,” “establish standards to ascertain the qualifications and competence of individuals to conduct breath alcohol testing analyses and to issue permits ...,” and enact rules and regulations. Driver alleged MoDOT failed to take any of these required measures and consequently Driver “was under no obligation to submit to an unauthorized breath test on an unapproved instrument administered and maintained by unauthorized persons” in that the arresting officer was not guided by any rules promulgated by MoDOT. Citing to State v. Peters, 729 S.W.2d 243, 245 (Mo.App.1987),2 Driver contends MoDOT's failure to promulgate “its own rules and regulations pertaining to the [BAP]” caused Driver to be “under no obligation to take a breath alcohol test in the first place, and [Driver's] driver[']s license cannot be subject to the sanction of [ section 577.041, RSMo Cum.Supp.2009].” He argued that his revocation should “be set aside.”
A hearing was held on Driver's petition and motion on June 30, 2010. The following occurred at this brief hearing:
[345 S.W.3d 383]
THE COURT: My understanding, the real issue in this case is a legal issue.
COUNSEL FOR DRIVER: That's correct, Your Honor.
THE COURT: I have before me [Driver's] objection to the admission of any evidence related to [Driver's] alleged refusal to submit to a breath test and a memorandum of law in support thereof. My understanding, this case is being submitted on the record?
COUNSEL FOR THE DIRECTOR: Yes, Your Honor.
COUNSEL FOR DRIVER: On the—On the motion. Yes, Your Honor. Please.
THE COURT: Okay. Well—Well, do we agree that this Court should review [Driver's] objections? If those objections are overruled—
COUNSEL FOR THE DIRECTOR: We stipulate to the facts in the report—
THE COURT:—is the—is [Driver] then stipulating that Exhibit A, which is the [Director's] certification of evidence, is admissible?[ 3]
COUNSEL FOR DRIVER: Yes, Your Honor, it is.
THE COURT: Okay.
COUNSEL FOR DRIVER: For [Driver].
THE COURT: Which is Exhibit A.
COUNSEL FOR DRIVER: Yes, sir.
THE COURT: Okay. [Counsel for the Director], do you need some time to respond to [Driver's] objections to—
COUNSEL FOR THE DIRECTOR: Yes, Your Honor. Fifteen days, please.
THE COURT: Fifteen days. Court grants the Director ... 15 days to respond, at which time case will be deemed submitted.
With that, we're off the record.
Following the hearing, it appears the Director timely filed her response to Driver's objections.4 Thereafter, on July 21, 2010, the trial court entered its “Judgment” as follows:
[t]his case was submitted to the [trial court] and after considering [Driver's] objection to the admission of the...
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Along v. Dir.
...that the results of the breath test would have otherwise been admissible had the driver submitted to the test." Bess v. Dir. of Revenue , 345 S.W.3d 380, 385 (Mo. Ct. App. 2011). If a driver refuses to take a breath test, proof of procedural compliance is not an issue. Fredrickson v. Dir. o......