Blydenburg v. David, 52142

• Decision Date: 13 March 1967
• Docket Number: No. 52142,52142
• Citation: 413 S.W.2d 284
• Parties: Nathan C. BLYDENBURG, Respondent, v. Thomas A. DAVID, Director, Department of Revenue, Appellant.
• Court: Missouri Supreme Court

Page 284

413 S.W.2d 284

Nathan C. BLYDENBURG, Respondent, v. Thomas A. DAVID, Director, Department of Revenue, Appellant.

No. 52142.

Supreme Court of Missouri, En Banc.

March 13, 1967.

Rehearing Denied April 10, 1967.

Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel, for respondent.

Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, Max Von Erdmannsdorf, Asst. Pros. Atty., Clay County, for appellant.

STORCKMAN, Chief Justice.

This is a proceeding under § 564.444, subd. 2, RSMo Cum.Supp., V.A.M.S. 1965, Laws 1965, S.B. 45, § 4, to require the Director of Revenue to reinstate the plaintiff's license to operate a motor vehicle. The trial court held that the Director of Revenue did not have the power and authority to revoke the plaintiff's drivers license and the privilege of operating a motor vehicle because 'said revocation was a violation of plaintiff's constitutional rights under the provisions of the Constitution of the United States and the Constitution of the State of Missouri.' The defendant Director appealed.

Insofar as presently pertinent, § 564.441 of our statutes provides that: 'Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 564.441, 564.442 and 564.444, a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while intoxicated. The test shall be administered by or at the direction of a law enforcement officer whenever the person has been arrested for the offense.' Section 564.442 relates to the effect of the chemical analysis as evidence in the trial of a charge of driving a motor vehicle while intoxicated. Section 564.444, subd. 1, provides that, if a person under arrest refuses to submit to a chemical test when requested under the conditions specified, such person's operating license may be revoked by the Director of Revenue for not more than a year on the sworn statement of the arresting officer. Section 564.444, subd. 2 provides a procedure by which a person whose license has been revoked may test the validity of the revocation in a court of record.

No November 27, 1965, at about 5:45 p.m., the plaintiff was driving his automobile in a northerly direction on North Agnes Street in Kansas City, Clay County, Missouri. At 53rd Street his automobile crossed over a T-intersection, went off the street across a ditch onto private property, ran over some shrubs and came to rest against a telephone pole. The plaintiff testified that he intended to turn left into 53rd Street but was forced off the road by another automobile which did not stop; that he went to a nearby shopping center, telephoned the local police station and reported the accident but was told by the person with whom he talked that he should get his car off himself; that he then called his wife and she picked him up in another car in about forty-five minutes and they returned to the scene of the accident. Police officers were there when they arrived.

Donald R. Whitaker, a member of the Kansas City Police Department, testified that on his return the plaintiff as first asked what was going on and acted as if he had not been there before; he finally admitted, however, that the car was his and stated that he had gone to call the police. The Officer further testified that he smelled a strong odor of alcohol on plaintiff's breath, that plaintiff's speech and manner at the scene indicated he had had too much to drink, and that the plaintiff gave the lady who owned the property 'a rough time' because she wanted his car removed. Officer Whitaker told the plaintiff he was going to arrest him for driving while intoxicated and careless driving; he asked the plaintiff if he would agree to take the breath test to determine the alcoholic content of his blood and he indicated he would, but when they got to the police station the plaintiff refused. Officer Whitaker testified that both he and another officer explained to the plaintiff that his drivers license could be revoked if he refused to take the test but the plaintiff persisted in his refusal. During this interval the plaintiff became obnoxious, would not listen to the officers, and called one of the officers a loud mouth. No other sobriety tests were given.

During his testimony the plaintiff admitted that he was asked by the officers to blow into the tube of the testing device and that he refused to do so. He also admitted that he had drunk six or eight cans of 5% beer during the afternoon prior to the accident and that there was an odor of beer about him when he was talking to the officers, but he denied being under the influence of alcohol at the time of the accident. He also admitted that he was arrested and that he was 'convicted of driving under the influence' as a result of the accident.

The plaintiff's petition for a hearing alleges that the action was brought pursuant to § 564.444; that the plaintiff was notified by the Director under date of December 2, 1965, 'that his privilege of operating a motor vehicle in the State of Missouri is revoked for one year'; that he was arrested on November 27, 1965, but 'the arresting officer did not state the reasons for requesting him to submit to a chemical test, nor did said arresting officer advise him that his license could be revoked on his refusal to take such a test.' Paragraph 4 of the petition further alleged that plaintiff's 'privilege to operate a motor vehicle in the State of Missouri has been revoked in controvention of his constitutional rights under the provisions' of the federal and state constitutions. The trial court found for the plaintiff solely on the allegations of paragraph 4 of the petition which as above stated were that his constitutional rights had been violated.

The Director asserts that the trial court erred in holding the statutes unconstitutional because the plaintiff did not property allege any constitutional violations. Cases relating to the time and manner in which constitutional questions must be raised to preserve them for review on appeal are not in point here because the court adopted and incorporated the general charge of unconstitutionality in the judgment. The most bothersome feature at this stage of the case is the failure of the judgment to specify the particular constitutional provisions found to be violated. Even though the allegations of the petition did not comport with good pleading, the constitutional questions became an inseparable part of the issues that must be reviewed on appeal since the general holding of unconstitutionality is the sole ground of the trial court's decision. Kansas City v. Hammer, Mo., 347 S.W.2d 865, 867(2). ¹

Of the three factual issues specified for a determination by § 564.444, subd. 2, the plaintiff admitted he was arrested and that he refused to submit to the test. The evidence was sufficient to establish that the arresting officer had reasonable grounds to believe the plaintiff was driving a motor vehicle while in an intoxicated condition. The plaintiff's contentions on this appeal are that the requirements of §§ 564.441--564.444 are in violation of due process of law as well as the constitutional provisions against self-incrimination, and that the legislative grant of authority to the Director of Revenue under these statutes, sometimes referred to as the Implied Consent Law, is in violation of constitutional provisions and also in conflict with legislative provisions for administrative procedure and review under Chapter 536, RSMo 1959, V.A.M.S.

The recent decision of the United States Supreme Court in Schmerber v. State of California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, has established controlling constitutional standards for determining the admissibility of the results of a similar sobriety test as evidence in a criminal case. The legal principles pronounced are highly persuasive of the proper disposition of the constitutional issues in the instant case. Schmerber was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. He was arrested at the hospital where he was being treated for injuries received in the accident; at the direction of a police officer a blood sample was taken from Schmerber's body by a physician at the hospital. The chemical analysis of the sample indicated intoxication and the report was admitted in evidence at the trial Schmerber objected to the evidence on the ground that the blood had been withdrawn despite his refusal, on advice of counsel, to consent to the test. The United States Supreme Court held the report of the analysis was properly admitted in evidence and affirmed the conviction.

Schmerber contended that admission of the evidence pertaining to the alcoholic content of his blood in view of the means by which it was obtained violated constitutional guarantees of due process of law and his right against self-incrimination; he also interposed additional defenses not involved in the case at bar. The nature of this kind of evidence and the reasonableness and efficacy of such chemical analyses was dealt with as follows in the opinion: 'We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to p...