Brown v. Director of Revenue, SC 84690.

• Decision Date: 24 September 2002
• Docket Number: No. SC 84690.,SC 84690.
• Citation: 85 S.W.3d 1
• Parties: Todd A. BROWN, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Supreme Court

Page 1

85 S.W.3d 1

Todd A. BROWN, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. SC 84690.

Supreme Court of Missouri, En Banc.

September 24, 2002.

Jeremiah W. (Jay) Nixon, Atty. Gen., John Mollenkamp, Asst. Attorney General, for Appellant.

Carl M. Ward, Clayton, for Respondent.

PER CURIAM.¹

The director of revenue appeals from a judgment reinstating the driving privileges of Todd A. Brown. The appeal follows a trial de novo after an administrative hearing upheld the director's suspension/revocation of Brown's license pursuant to section 302.505.² At the time of Brown's arrest, that section allowed suspension or revocation upon a determination that there was probable cause to believe a person had operated a motor vehicle while in an intoxicated condition with a blood alcohol concentration of .10 percent or more by weight.³ The trial court concluded that although Brown's blood alcohol concentration at the time of his arrest for suspicion of driving while intoxicated was above the .10 percent threshold, the arresting officer lacked probable cause to believe Brown was in that condition. The director correctly contends that the trial court's judgment, that the arresting officer lacked probable cause, is against the weight of the evidence and misapplies the law. That judgment is reversed, and the case is remanded.

At approximately 3:30 a.m. on February 6, 2000, Corporal R.D. Reid, of the West Plains police department, observed a Chevrolet Blazer make an illegal left turn. Reid drove up behind the vehicle and activated the patrol unit's emergency lights. When the Blazer failed to stop, Reid activated the siren. At this point Reid observed the vehicle cross or hit the centerline twice, which Reid indicated would "in and of itself constitute a traffic violation." Reid testified that Brown continued driving more than a normal distance before pulling over, although a paved shoulder was available prior to where Brown eventually stopped. As Reid approached Brown, he noticed a strong odor of intoxicants and that Brown's eyes were watery and bloodshot. Reid asked Brown to exit the vehicle and walk to the patrol unit, during which time Reid observed Brown swaying, or "taking heavy steps," while walking. Once Brown was inside the patrol unit, Reid was able to identify that the strong odor of intoxicants was emanating from Brown.

Based on Reid's observations of Brown, including the driving, swaying, and odor of intoxicants, Reid formed an opinion that Brown was under the influence of alcohol. Therefore, Reid requested that Brown submit to a set of field sobriety tests so that Reid could determine if Brown was "too intoxicated to be driving." Brown agreed to perform the field sobriety tests, and Reid administered three of them-the horizontal gaze nystagmus (HGN), the heel-to-toe (also referred to as the walk-and-turn), and the one-leg stand. Reid determined that Brown failed each of the tests. Before and during the administration of the field sobriety tests, Reid also noticed Brown's slurred speech and Brown's poor ability to follow directions.

Reid testified that he routinely used the above-mentioned field sobriety tests and would typically rely on their results in making a probable cause determination. Reid further testified that, based on his observations of Brown and Brown's performance on the field sobriety tests, Reid formed the opinion that Brown was driving while intoxicated. Reid subsequently arrested Brown for "operat[ing] a motor vehicle while in an intoxicated condition," in violation of a municipal ordinance of the city of West Plains. Brown also received citations for the improper turn and "fail[ure] to keep right by crossing the centerline." After transporting Brown to the West Plains police department, Brown consented to a breath analysis test, which showed a blood alcohol concentration of .129 percent.

During the trial, Brown admitted to drinking six twelve-ounce bottles of beer between 10:00 p.m. on February 5, 2000, and 3:00 a.m. on February 6, 2000. Also at trial, Brown presented an expert witness, William Taylor, who testified extensively regarding the proper administration of the three field sobriety tests used by Reid, particularly the standards established by the National Highway and Traffic Safety Administration. Taylor provided detailed testimony outlining how Reid failed to follow proper procedures in his administration of the three tests. According to Taylor, because of the improper administration, no reasonably prudent, trained, or cautious police officer would rely upon the results in either a probable cause determination or a determination of whether Brown was intoxicated.

On June 8, 2001, the trial court entered "Findings and Judgment" in the case. The trial court found that Taylor's testimony "comprehensively deconstructed .... Reid's procedure in the administration of each of the three tests .... [and] that there was little doubt of ... Reid's irregular administration of each of the three standard procedures." Therefore, the trial court determined that the results of the field sobriety tests must be disregarded. The trial court also found that "Reid attested his probable cause determination is made solely on the basis of field sobriety test results." The trial court concluded "that although a preponderance of the evidence shows that [Brown's] alcohol concentration at the time of arrest was above ten one-hundredths of one percent or more by weight and that [Brown] was arrested on suspicion of driving in that condition, nevertheless, the arresting officer lacked probable cause to so believe." Therefore, the trial court ordered the director to reinstate Brown's driving privileges. Although the judgment demonstrates careful consideration and sets out in great detail the failure of the officer to properly conduct field sobriety tests, the court appears to have applied the wrong standard. See Soest v. Director of Revenue, 62 S.W.3d 619, 621 (Mo.App.2001).⁴ The proceeding is civil rather than criminal and is not a trial of the issue of intoxication. Id. The issue, rather, is whether a prudent, cautious and trained officer had reasonable grounds to believe the arrestee was driving while intoxicated. Id.

The probable cause required for the suspension or revocation of a driver's license is the level of probable cause necessary to arrest a driver for an alcohol-related violation. Aron v. Director of Revenue, 737 S.W.2d 718, 719 (Mo. banc 1987). That level of probable cause will exist "when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist." Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.2001). Probable cause, for the purposes of section 302.505, will exist "when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed." Smyth v. Director of Revenue, 57 S.W.3d 927, 930 (Mo.App.2001). The level of proof necessary to show probable cause under section 302.505 "is substantially less than that required to establish guilt beyond a reasonable doubt." Id. "There is a `vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt." Rain, 46 S.W.3d at 588. The trial court must assess the facts "by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer." Cox v. Director of Revenue, 37 S.W.3d 304, 307 (Mo.App.2000).

The testimony of Brown's expert, Taylor, as well as Reid's own testimony, provided substantial evidence to support the trial court's determination that Reid improperly administered all three tests and that, therefore, the test results may be disregarded and not provide a basis for the probable cause determination.

Having determined that the trial court could disregard the field tests results in the probable cause determination, next considered is whether Reid's testimony precluded any other evidence from being used in the probable cause determination. On direct examination, the director asked the following line of questioning:

Q: Now, when you make a DWI arrest, do you make some sort of determination initially when you make contact with the driver as to whether you believe he's — he's intoxicated?

A: No, sir.

Q: What do you do?

A: Upon contact, if I believe they've been drinking, they're requested to perform the field sobriety tests.

Q: And why do you have them perform field sobriety tests?

A: To make my determination if they've had too much to drink to be driving.

Later, also on direct, the following line of questioning took place:

Q: What did you do next with [Brown]?

A: I then asked [Brown] if he would be willing to submit himself to some field sobriety tests.

Q: Now, why would you request him to do field sobriety tests at that point in time?

A: Because it was my belief at the time that he was under the influence of alcohol. And I would request him to do the field sobriety so I could determine if he was, in my opinion, too intoxicated to be driving.

Q: Was this just a hunch, or what did you base that —

A: On —

Q: — that opinion on?

A: On my observations of [Brown], with the driving and the swaying and then the odor of intoxicants.

One last exchange occurred on direct examination that addressed Reid's probable cause determination.

Q: Now, based upon your observation of [Brown], your general observations and his performance on the field sobriety tests, were you able to form an opinion as to whether or not you believed that he was driving while intoxicated?

A: Yes, sir.

Q: And what was that opinion?

A: That I did believe that he was driving while intoxicated.

Q: Now, you indicated that you routinely use these particular — three particular field sobriety tests, correct?

A: Yes, sir.

Q: And these are something...