Buckley v. Director of Revenue
| Citation | 4 S.W.3d 152 |
| Parties | (Mo.App. E.D. 1999) . Michael D. Buckley, Appellant, v. Director of Revenue, Respondent. Case Number: 75215 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Decision Date | 21 September 1999 |
| Court | Court of Appeal of Missouri (US) |
Appeal From: Circuit Court of St. Louis County, Hon. Robert Cohen
Counsel for Appellant: Frank A. Anzalone
Counsel for Respondent: Evan F. Buchheim
Opinion Summary: The driver appeals a judgment sustaining revocation of his driving privileges after he refused a breathalyzer test.
AFFIRMED.
Division Four holds: The Alcohol Influence Report was sufficient to support a finding that the police officer complied with notice requirements of section 577.041, called the implied consent law or implied warning law. Refusal was a "statutory refusal."
Michael Buckley (Driver) appeals from the judgment sustaining the Director of Revenue's (Director) revocation of his driving privileges pursuant to section 577.041, RSMo Cum. Supp. 19971, after Driver refused a breathalyzer test. We affirm.
On December 21, 1997, Driver was operating his vehicle in St. Louis County when he was stopped by a St. John police officer for weaving. The officer arrested Driver for driving while intoxicated. Driver refused to submit to any field sobriety tests. Driver also refused to submit to a breathalyzer test to determine his blood alcohol content. Director revoked Driver's driving privileges.
After the revocation, Driver filed a petition for a trial de novo as allowed by section 302.535, RSMo Cum. Supp. 1998. The hearing on the petition was held on November 6, 1998. At that time, Director offered the Alcohol Influence Report (Form 2389) prepared by the arresting officer. The court admitted the report. Driver offered his testimony and disputed that the officer had ever given him the Implied Consent warnings. The court entered judgment in favor of Director, sustaining the revocation of Driver's driving privileges.
Driver now appeals, contending that the Director failed to offer substantial evidence that he refused the breathalyzer test because Driver testified the officer never gave him the required warnings under the Implied Consent Law, section 577.041. He contends his refusal was not a "statutory refusal."
Section 577.041.1 provides that an officer's request to submit to a breathalyzer test "shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test." These warnings have been called the "Implied Consent Law" or "Implied Consent Warning." This warning is sufficient unless the words either: (1) failed to inform the driver of all the consequences of refusal; or (2) mislead the driver into believing the consequences of refusal are different than the law actually provides. Teson v. Director of Revenue, 937 S.W.2d 195, 197 (Mo. banc 1996). A refusal is not a valid "statutory refusal" if the arresting officer omits statutorily necessary information. McMaster v. Lohman, 941 S.W.2d 813, 816 (Mo. App. W.D. 1997).
Here, Driver testified that the arresting officer never informed him of the Implied Consent Law. However, in the Alcohol Influence Report which was admitted into evidence, the arresting officer certified that he did inform Driver of the provisions of Implied Consent Law. The officer checked boxes on the Report, which will support findings of statutory compliance on the following:
1. You are under arrest for driving while intoxicated.
2. To determine the alcohol/drug content of your blood, I am requesting you submit to a chemical test of your Breath.
3. If you refuse to take the test(s), your...
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