Borchelt v. Director of Revenue, State of Mo.

• Decision Date: 25 March 1991
• Docket Number: No. 17098,17098
• Citation: Borchelt v. Director of Revenue, State of Mo., 806 S.W.2d 95 (Mo. App. 1991)
• Parties: Donald G. BORCHELT, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: Missouri Court of Appeals

Page 95

806 S.W.2d 95

Donald G. BORCHELT, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. 17098.

Missouri Court of Appeals,

Southern District,

Division One.

March 25, 1991.

William L. Webster, Atty. Gen., Jatha B. Sadowski, Sp. Asst. Atty. Gen., Jefferson City, for appellant.

No appearance for respondent.

CROW, Judge.

The Director of Revenue ("Director") appeals from a "Summary Judgment" ordering him to reinstate the motor vehicle operator's license of Donald G. Borchelt. The Director had revoked the license per § 577.041.1, RSMo Supp.1987, because Borchelt refused to submit to a chemical test of his breath after being arrested for driving while intoxicated ("DWI"). § 577.010, RSMo 1986.

The circuit court based its judgment on "res judicata." The court held it was bound by a finding of another judge in a DWI case against Borchelt that the arresting officers "had no reasonable cause to believe [Borchelt] was driving a motor vehicle while in an intoxicated condition."

The Director's sole point relied on in this appeal maintains any determination in the DWI case was not res judicata in the instant case because "the two proceedings were not the same cause of action and did not involve identical issues or the same parties."

The epic began January 31, 1989, when, upon petition of Borchelt's wife, the Circuit Court of Cape Girardeau County issued an ex parte order of protection, § 455.035, RSMo 1986, barring Borchelt from abusing, molesting or disturbing his wife and from entering upon the premises of her dwelling. The case was assigned number CV689-213DR.

About 9:05 p.m., December 4, 1989, Borchelt drove his pickup into the driveway of his wife's residence. ¹ His 18-year-old daughter, who was in the living room, telephoned the Cape Girardeau County Sheriff's Department, stating Borchelt was at the residence in violation of the ex parte order. Borchelt drove away soon afterward.

At 9:14 p.m., three deputy sheriffs observed Borchelt in his pickup on a barn lot. One of the deputies approached the pickup and knocked on the window. Borchelt did not respond. The deputy opened the door and Borchelt "nearly fell out." The deputy arrested Borchelt for violating the ex parte order.

The arresting officer detected a strong odor of intoxicants on Borchelt's breath. His speech was slurred, his eyes bloodshot, and he had difficulty maintaining his balance. Alcoholic beverages were found in the pickup.

The arresting officer took Borchelt to the sheriff's office and informed Borchelt he was also under arrest for DWI. The officer requested Borchelt to submit to a "BAC Verifier" test of his breath. Borchelt refused.

Borchelt was charged with two crimes in the Circuit Court of Cape Girardeau County (Judicial Circuit 32): violating the ex parte order, § 455.085.7, RSMo Cum.Supp.1989 (Count I), and DWI (Count II). ² The case was assigned number CR589-1437M.

The arresting officer filed a sworn report with the Director per § 577.041.1, RSMo Supp.1987, stating the officer had reasonable grounds to believe Borchelt was driving a motor vehicle while in an intoxicated condition and the officer requested Borchelt to submit to a chemical test to determine the alcohol content of his blood, but Borchelt refused.

On January 17, 1990, the Director mailed a notice to Borchelt that effective February 22, 1990, his privilege to legally operate a motor vehicle in Missouri would be revoked for one year for refusal to submit to the test.

Borchelt thereupon commenced the instant proceeding in the Circuit Court of Bollinger County (allegedly his county of residence) per § 577.041, RSMo Supp.1987, which reads:

"1. ....

2. If a person's license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record in the county in which he resides or in the county in which the arrest occurred.... At the hearing the judge shall determine only:

(1) Whether or not the person was arrested;

(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and

(3) Whether or not the person refused to submit to the test.

3. If the judge determines any issue not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.

...."

On May 4, 1990, Borchelt's resourceful counsel filed a motion to dismiss the charges in CR589-1437M. The motion alleged the ex parte order Borchelt was accused of violating in Count I was void on the date he allegedly violated it (December 4, 1989), because no hearing had been held in CV689-213DR within 15 days after the order was entered, no continuance had been granted for good cause, and no full order of protection had been issued. See: §§ 455.035-.040, RSMo 1986. Consequently, pled the motion, Count I should be dismissed.

As to Count II (the DWI charge) the motion averred:

"Defendant ... moves the dismissal of Count II of this Information for the following reasons: Accompanying this Motion to Dismiss are Motions to Suppress Evidence.... Defendant states that because the alleged ex parte order was of no force and effect and was invalid, and because the officers were sent to search for defendant based upon a non-existent, illegal and unconstitutional order (namely the nugatory and non-existent ex parte order), there was a lack of probable cause for all of the actions taken by the officers. This being true, and inasmuch as the officers went onto private property [to] arrest defendant at a time he was not driving a motor vehicle, and because that arrest was unlawful and illegal, all information gathered by the officers as a result of such illegal and unlawful arrest should be suppressed, and if suppressed, Count II of this information should be dismissed."

Accompanying the motion to dismiss was a "Motion to Suppress Evidence." It averred the alcoholic beverages found in Borchelt's pickup December 4, 1989, should be suppressed, as the search and seizure were unlawful. The motion asserted there was no probable cause for Borchelt's arrest "based upon all of the allegations and facts set forth in the Motion to Dismiss" and in a contemporaneous motion to suppress Borchelt's statements.

On May 7, 1990, The Honorable William S. Rader, an Associate Circuit Judge of the Circuit Court of Cape Girardeau County, took up Borchelt's motion to dismiss in CR589-1437M. An entry on the court's docket sheet that date reads, in pertinent part: "Court orders Count I dismissed. Motion in regard to Count II taken under advisement.... Court overrules Defendant's Motion to Suppress Evidence on Count II."

On May 9, 1990, Judge Rader again took up CR589-1437M. As we comprehend the record, Borchelt filed another motion to dismiss that date. This motion averred the State had failed to comply with a motion to produce filed by Borchelt five months earlier. Specifically, alleged Borchelt, there were records in the sheriff's office demonstrating no report was made by Borchelt's wife or daughter that he was drinking December 4, 1989, hence the records would show an absence of knowledge by the deputies, as they approached Borchelt's pickup, that he had earlier been drinking. Consequently, pled the motion, the records would show a lack of probable cause for the arrest. The motion concluded: "Since the State has not produced this essential and important material and information which is under its control defendant requests the dismissal of the DWI charge."

Judge Rader made a docket entry that date (May 9, 1990) in CR589-1437M stating, in pertinent part: "[D]efendant files ... Motion to Dismiss. Hearing held on Motion to Dismiss; motion sustained. Cause dismissed."

On May 16, 1990, Borchelt filed a motion for summary judgment in the instant case. It averred the State lacked "probable cause" to arrest him December 4, 1989. The motion asserted:

"... such issue has been determined and decided by the Hon. William Rader ... in Case CR589-1437M. In that case [Borchelt] was charged with a class A misdemeanor of violation of an ex parte order. The Court found that there was no valid ex-parte order and dismissed Count I of that case. The Court then found and determined that there was a lack of probable cause for arrest for the DWI charge, and Count II was dismissed. Those orders are dispostive [sic] of the issue of probable cause; it is essential that the State of Missouri have probable cause for an arrest before a person can be subjected to lose [sic] of his ... driving privilege for alleged failure to take a breathalyzer test.... It is not for this court to determine if there was probable cause for [Borchelt's] arrest. That deterimination [sic] has been made by a ... Judge of the same judicial circuit as this court at a time that the same persons were parties to the lawsuit, namely the State of Missouri and ... Borchelt. That issue is res judicata and there is no question or issue for this court to decide with regard to probable cause....

Based upon [the] records [in CR589-1437M and CV689-213DR, Borchelt] moves this court to find in [his] favor ... by way of summary judgmenmt [sic] for the reasons set forth above."

The circuit court took up the motion for summary judgment the day it was filed. The Prosecuting Attorney of Bollinger County appeared, as did Borchelt and his lawyer. The court entered "Summary Judgment" providing, in pertinent part:

"... based upon [the] Motion For Summary Judgment the Court find [sic] the following: Judge William Rader ... of the 32nd Judicial Circuit Court in ... Case No. CR 589-1437M dismissed Count I ... (a charge of violation of an ex-parte order) on May 7, 1990 and dismissed Count II ... (the DWI charge) on May 9, 1990. Judge Rader's dismissal of those two charges was based upon a finding that the officers had no probable cause for making the arrest of [Borchelt], and had no reasonable cause to believe that [Borchelt]...