Brown v. Director Of Revenue

• Decision Date: 14 November 2000
• Citation: 34 S.W.3d 166
• Parties: (Mo.App. W.D. 2000) . Robert M. Brown, Appellant v. Director of Revenue, Respondent. Case Number: WD57758 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

34 S.W.3d 166 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Robert M. Brown, Appellant v. Director of Revenue, Respondent.

Case Number: WD57758

Missouri Court of Appeals Western District

Handdown Date: 11/14/2000

Appeal From: Circuit Court of Clay County, Hon. Anthony Rex Gabbert

Counsel for Appellant: David McLane Bryan

Counsel for Respondent: Evan Joseph Buchheim

Opinion Summary:

Robert M. Brown appeals the circuit court order revoking his driver's license for refusing to submit to chemical tests as required by the Implied Consent Law. At issue is whether the failure of law enforcement authorities to allow Mr. Brown, after his request, the opportunity to contact an attorney before taking the breath test requires the setting aside of his license revocation.

REVERSED AND REMANDED WITH DIRECTIONS.

Division holds: Division holds that section 577.041 requires that, upon request for counsel, a driver be given twenty minutes to contact counsel, even if he has been earlier provided time to contact counsel before the Implied Consent Law advice, overruling Wilmoth v. Director of Revenue, 903 S.W.2d 595 (Mo. App. W.D. 1995). If the officer provides that time prior to the Implied Consent Law advice, then the court will review the evidence to determine whether the defendant suffered actual prejudice, from the omission, of the arrestee's decision-making process.

Opinion Author: Ronald R. Holliger, Presiding Judge

Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Breckenridge and Smart, Jr., J.J., concur.⁹

Opinion:

Robert M. Brown appeals the order of the Circuit Court of Clay County, Missouri, revoking his driver's license under section 577.041,¹ for refusing to submit to chemical tests as required by the Implied Consent Law. Section 577.020. At issue is whether the failure of law enforcement authorities to allow Mr. Brown, after his request, the opportunity to contact an attorney before taking the breath test requires the setting aside of his license revocation. The judgment revoking Mr. Brown's driver's license was erroneous and, therefore, is reversed.

BACKGROUND

On June 19, 1999, at 12:05 a.m., appellant ("Brown") was pulled over by Officer Brian Lawrence of the North Kansas City, Missouri, Police Department. He was asked by Officer Lawrence to submit to field sobriety tests. Mr. Brown advised the officer that he wanted to speak to a lawyer before taking any tests. He was transported to the police station, where he was given the opportunity to use a telephone. Officer Lawrence testified that he gave Mr. Brown a telephone book and told him he had 20 minutes to contact a lawyer, that Mr. Brown attempted to do so and Officer Lawrence even assisted with the calls, and that Mr. Brown apparently was unable to reach a lawyer.

Twenty-two minutes after Mr. Brown began his attempts to reach a lawyer, at 12:40 a.m., Officer Lawrence read to him the Miranda warnings and attempted an interview. Mr. Brown refused to submit to an interview. Officer Lawrence then read to him the Implied Consent Law, section 577.041, RSMo Cum. Supp. 1998, and asked him to take a breath test. Officer Lawrence's report noted that Mr. Brown responded, "I will not take the test until I talk to my lawyer." Officer Lawrence deemed this a refusal. Mr. Brown then asked to take the breath test. Officer Lawrence testified that Mr. Brown's request came approximately 10 minutes after the Implied Consent Law was read to him and that he refused to administer it to Mr. Brown at that time. Mr. Brown then asked to be transported to a hospital for an independent breath test. Officer Lawrence refused that request as well.

At the revocation hearing, the trial court found in favor of the state and ordered Mr. Brown's driver's license revoked. This appeal followed.

APPEAL

Mr. Brown raises three points of error in the trial court's order upholding the revocation of his driver's license. In his first point, he claims the court erred in ruling that the 20-minute waiting period required under section 577.041.1 can occur prior to the request to submit to a chemical test. In his second point, he claims the court incorrectly ruled that the 20-minute waiting period requirement was satisfied prior to the requested chemical test. In his third and final point, Mr. Brown argues the revocation of his driver's license violated his constitutional rights to obtain exculpatory evidence by way of obtaining an independent breath test. Because the case is reversed on other grounds, Mr. Brown's final point is not discussed herein.

STANDARD OF REVIEW

On review, the trial court's ruling must be upheld unless it is unsupported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To uphold the revocation of a driver's license for refusal to submit to a chemical test, the trial court shall determine only the following: 1) whether the driver was arrested; 2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and 3) whether the driver refused to submit to the test. McMaster v. Lohman, 941 S.W.2d 813, 815 (Mo. App. 1997); Borgen v. Director of Revenue, 877 S.W.2d 172, 174 (Mo. App. 1994). The Director of Revenue has the burden of proof, and failure to satisfy the burden will result in the reinstatement of the driver's license. McMaster, 941 S.W.2d at 815-16.

The state argues that the trial court did not have jurisdiction to consider Mr. Brown's Petition for Review because it stated no grounds for setting aside the revocation. Mr. Brown's pro se petition states that he "petitions the Court pursuant to Sections 302.311 and 577.041, RSMo for a hearing de novo on the administrative revocation of his driving privilege." The petition also incorporated as an exhibit the Director of Revenue's Notice of Revocation for Refusal to Submit to Alcohol/Drug Chemical Test. The state contends specifically that the trial court's subject matter jurisdiction is not invoked unless the petition sets forth the grounds to set aside the revocation. We find that the cases relied upon by the state are inapposite or do not support the point urged by the state.

Cox v. Director of Revenue, 974 S.W.2d 633 (Mo. App. 1998), Pointer v. Director of Revenue, 891 S.W.2d 876 (Mo. App. 1995), and Stallmann v. Director of Revenue, 816 S.W.2d 6 (Mo. App. 1991) are not refusal cases under section 577.041. Cox and Pointer are cases involving review under section 302.311, which does not explicitly state what the contents of a petition for review must be. It does set forth the time limits for seeking review (30 days), the type of appeal hearing (de novo), and that the appeal is from a denial, withholding, suspension or revocation of a drivers' license by administrative action of the Director of Revenue. In Cox, the driver filed a petition seeking limited (hardship) driving privileges. He had been assessed 12 points against his license for a charge of driving while intoxicated, his license had been revoked for one year, and he was notified that he would not be eligible for reinstatement for 10 years pursuant to section 303.060(9) RSMo Cum. Supp. 1996. Rather than filing a petition for review under section 302.311, he filed an application for limited (hardship) privileges under section 302.309. The petition did not ask for relief from the Director's purported notice of ineligibility for 10 years or for relief from the Director's purported decision. Nevertheless, the trial court purported to rule on the merits as to when Mr. Cox would be eligible for reinstatement. Cox, 974 S.W.2d at 634. Similarly, Pointer involved a petition for review, attacking only a revocation for accumulation of points and then seeking at trial a determination of a future eligibility reinstatement date under section 302.060(9). The court in Pointer agreed with the Director's argument that the trial court lacked subject matter jurisdiction. In both Cox and Pointer, the appellate court held that the trial court erred in granting relief concerning the eligibility reinstatement date when no such relief was sought in the petition.

We believe the Director's argument confuses the term "grounds" in those opinions with the concept of reasons or theories that support the argument attacking a specific action by the Director.² We acknowledge that Stallmann seems to equate the term "grounds" with a theory or reason for relief. The reason given by the trial court for ordering reinstatement was held by the appellate court to not be an element of the Director's burden.³ Stallmann, 816 S.W.2d at 7. The court did not reject the argument on a jurisdictional basis.⁴

The distinction discussed was sub silentio recognized recently by the Eastern District, when it applied the principle to a situation where relief was granted (expungement of a conviction) that was not sought by the petition. Kayser v. Director of Revenue, 22 S.W.3d 240 (Mo. App. 2000). The Missouri Supreme Court has addressed the issue of subject matter jurisdiction, albeit in a different context, for a petition for review under section 303.311. In Jackson v. Director of Revenue, 893 S.W.2d 831 (Mo. banc 1995), the Court rejected the contention and overruled many cases holding that a petition for review that did not name the Director of Revenue in the caption did not invoke the subject matter jurisdiction of the court. The court said, "[s]ubject matter jurisdiction is merely the court's power to hear and determine the matter involved in the case. The court's power exists where the petitioner meets the requirement of the statute that provides for review of the driver's license suspension or revocation. . . ." Id. at 833. The court said further that the second element of a petition that invokes subject matter jurisdiction is clear demonstration that the "suit seeks review of a...