Callendar v. Director of Revenue

• Citation: 44 S.W.3d 866
• Parties: (Mo. Banc 2001) Tammy Jean Callendar, Respondent v. Director of Revenue, Appellant. WD58353 0
• Decision Date: 06 March 2001
• Court: United States State Supreme Court of Missouri

44 S.W.3d 866 (Mo. Banc 2001)

Tammy Jean Callendar, Respondent v. Director of Revenue, Appellant.

WD58353

Missouri Court of Appeals Western District

03/06/2001

Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske, Judge

Counsel for Appellant: James Chenault, III

Counsel for Respondent: David Pettyjohn

Opinion Summary: The Director of Revenue appeals judgment setting aside the suspension of Tammy Jean Callender's driver's license. The Court based its decision on a finding that the driver had not been placed under arrest as required by section 577.041.

AFFIRMED.

Division Two holds:

(1) Under section 544.180, an arrest is not effectuated unless the suspect is actually restrained by the police officer or submits to the custody of the officer.

2) The fact that the police officer stated that the driver was under arrest as part of reading the implied consent warning was not sufficient to establish that she was actually under arrest where the Director failed to present any evidence indicating that the officer physically restrained her or that she had submitted to the custody of the officer.

(3) The restraint of the driver by paramedics during her transfer to the hospital did not satisfy the restraint requirement of section 544.180 where there was no evidence that she remained restrained after arriving at the hospital, that the police officer participated in that restraint, or that the paramedics were acting under authority of a warrant or had any intention of effecting an arrest of the driver in this manner.

Joseph M. Ellis, Judge

The Director of Revenue for the State of Missouri appeals from a judgment entered in the Circuit Court of Platte County, Missouri, setting aside the suspension of Respondent Tammy Jean Callender's driver's license.

On October 2, 1999, at approximately 11:30 a.m., Officer Donald Dawson of the Riverside Police Department was traveling westbound on Vivion Road when he saw Respondent's car strike the rear of another vehicle in the eastbound lane. After Officer Dawson turned on his police lights and began to make a U-turn, Respondent drove rapidly away from the scene of the accident. Officer Dawson followed Respondent from Riverside into Northmoor where Respondent's vehicle veered into the oncoming traffic lane, struck another car head-on, and bounced into a minivan.

When Officer Dawson reached Respondent's vehicle, he found Respondent unconscious behind the steering wheel and another individual unconscious in the passenger seat. Empty bottles of beer were in both the front and back seats of the vehicle. Some full bottles of beer and an unopened bottle of bourbon were also in the car.

Subsequently, Respondent regained consciousness but was groggy and lethargic. Officer Dawson detected a strong odor of alcohol on her breath from two to three feet away. Officer Dawson noted that Respondent had sustained major injuries to her face and head. He also observed that Respondent's eyes were dilated and glazed-over. Due to her physical condition, Officer Dawson did not administer any field sobriety tests.

Respondent behaved belligerently and became combative with the medical personnel attempting to put her in an ambulance. Because of her combative nature, the medical personnel applied restraints to hold her on the gurney in the ambulance.

The ambulance crew took Respondent to Truman Hospital, and Officer Dawson followed them there. At the hospital, at 12:42 p.m., Officer Dawson read Respondent the implied consent warning and requested that she submit to a blood-alcohol test. Respondent stated that she would not take such a test. After Respondent refused to take the test or answer his questions, Officer Dawson left the hospital. Officer Dawson did not attempt to hand-cuff Respondent or otherwise restrict her freedom in any way while at the

hospital, and as far as he was concerned, she was free to leave the hospital.¹

Based on her refusal to submit to the blood-alcohol test, on October 5, 1999, the Director of Revenue revoked Respondent's driving privileges. On October 20, 1999, Respondent filed a Petition to Review Revocation of License in the Circuit Court of Platte County.

The Circuit Court conducted a hearing on Respondent's motion on February 3, 2000. Following the hearing, the Circuit Court entered its judgment sustaining Respondent's motion and reinstating her driving privileges. The Court based its decision entirely on a finding that Respondent had not been placed under arrest as required by section 577.041.²

On appeal, the Director claims that the uncontroverted evidence established that Respondent had been placed under arrest. The Director contends that Respondent should be deemed to have been arrested at the point Officer Dawson stated that she was under arrest for driving while intoxicated during the course of reading the implied consent warning to her. The Director further argues that the uncontroverted evidence satisfied all of the elements necessary to support a revocation under section 577.041 and that the Circuit Court erred in setting aside the revocation of Respondent's license.

When reviewing the Circuit Court's judgment in a driver's license revocation case,

we will affirm the judgment of the Circuit Court unless it is not supported by substantial evidence, the decision is against the weight of the evidence, or the Circuit Court erroneously declares or applies the law. Reynolds v. Director of Revenue, 20 S.W.3d 571, 574 (Mo. App. W.D. 2000). In reviewing the judgment, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Id.

"In order to revoke a license pursuant to section 577.041, the Director must show that: 1) the person was arrested; 2) the arresting officer had reasonable grounds to believe the person was driving a motor vehicle while in an intoxicated condition; and 3) the person refused to submit to a test." Rosa v. Director of Revenue, 948 S.W.2d 727, 728 (Mo. App. W.D. 1997). The Director of Revenue must establish all of these elements by a preponderance of the evidence. Rinne v. Director of Revenue, 13 S.W.3d 658, 659 (Mo. App. W.D. 2000). "If the trial court determines one or more of these criteria have not been met, it must reinstate driving privileges." Rosa, 948 S.W.2d at 728.

In the case at bar, the Circuit Court found that the Director failed to establish that Respondent was under arrest at the time she refused to submit to the blood-alcohol test. Under section 544.180, "[a]n arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise." Section 544.180, RSMo 1994; State v. Pfleiderer, 8 S.W.3d 249, 255 (Mo. App. W.D. 1999). Under this statutory language, contrary to the Director's assertion, an arrest is not effectuated merely by an officer telling a suspect that he or she is under arrest one or more...