Cerutti v. Dir. of Revenue

• Decision Date: 05 June 2020
• Docket Number: No. SD 36355,SD 36355
• Citation: 606 S.W.3d 207
• Parties: Thomas Michael CERUTTI, Petitioner-Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Respondent-Appellant.
• Court: Missouri Court of Appeals

606 S.W.3d 207

Thomas Michael CERUTTI, Petitioner-Respondent,

v.DIRECTOR OF REVENUE, State of Missouri, Respondent-Appellant.

No. SD 36355

Missouri Court of Appeals, Southern District, Division One.

Filed: June 5, 2020

Motion for Rehearing and/or Application for Transfer to Supreme Court Denied June 29, 2020

Application for Transfer Denied September 29, 2020

Attorney for Appellant – Eric Schmitt (Attorney General) and Eric McDonnell of Jefferson City, MO.

Attorneys for Respondent – John M. Eccher and Paige M. Sparks of St. Louis, MO.

Nancy Steffen Rahmeyer, J.

The Director of Revenue (the "Director") suspended the driving privileges of Thomas Michael Cerutti ("Cerutti") under section 302.505.1.¹ Cerutti requested a trial de novo and, following a trial, the trial court found that the Director failed to establish Cerutti was arrested on probable cause to believe he had committed an alcohol-related offense. The Director appeals claiming that the trial court misapplied the law because the historical facts found by the trial court establish probable cause as a matter of law. We find merit in the Director's claim, and reverse and remand the trial court's judgment with the direction to affirm the suspension of Cerutti's driving privileges.

Standard of Review

In an appeal from a court-tried civil case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. White v. Director of Revenue , 321 S.W.3d 298, 307-08 (Mo. banc 2010) (internal citation omitted). While no deference is owed to the final probable cause determination, this Court should defer to the facts found by the trial court, applying the law anew to those facts. Id. at 310. Our review of the trial court's application of the law to the historical facts found by it is de novo. Southards v. Director of Revenue , 321 S.W.3d 458, 461 (Mo.App. S.D. 2010).

Historical Facts as Found by the Trial Court

The trial court made the following findings of fact in its judgment:

On September 6, 2018, at approximately 8:01 p.m., Trooper Barclay received a complaint of careless and imprudent driving on Interstate 44 near the eastbound 205 mile marker. The report referenced a vehicle that was described as a black Jeep Grand Cherokee that was reportedly tailgating and speeding, and a license plate number was provided. The trooper subsequently observed the vehicle near the 213 mile marker, and began pacing it. He observed that the vehicle was traveling at a rate of 78 miles per hour in a 70 mile-per-hour zone. Trooper Barclay further observed the vehicle driving in the left lane while not passing, observed the vehicle drive onto the left shoulder, and then observed the vehicle move to the right lane without signaling. Trooper Barclay initiated a traffic stop on the vehicle and the driver stopped without difficulty at the 216.8 mile marker.

At approximately 8:10 p.m., the trooper made contact with the driver of the vehicle and requested his license and insurance documentation, which the driver provided without difficulty. Trooper Barclay identified the driver by his Missouri Driver License as Thomas Cerutti. Trooper Barclay indicated he could smell a moderate odor of intoxicants coming from inside the vehicle, ... and [noted] that [Mr. Cerutti's] eyes were watery, bloodshot, and glassy. ["Mr. Cerutti's speech was not slurred."] He requested Mr. Cerutti exit the vehicle and sit in his patrol vehicle. Mr. Cerutti was cooperative and complied, accompanying Trooper Barclay to his patrol vehicle without difficulty. Trooper Barclay noted an open 25 fluid ounce can of Bud Light in the cup holder of the driver's door pocket of Mr. Cerutti's vehicle. Trooper Barclay did no further investigation of the can and did not check to see if it was cold to the touch or if there was any liquid in the can.

While seated in the patrol vehicle, Cerutti stated, without being asked, that he had had a Blue Moon draft in a town at the next exit past Rolla at a bar called Sydney's. He also told Trooper Barclay that he had been texting as an explanation for speeding, driving onto the left shoulder and not signaling when switching lanes.

The trooper asked Cerutti if he would perform field sobriety tests, and Mr. Cerutti agreed to do so. The trooper performed the horizontal gaze nystagmus test. At trial, [the Director] stipulated that the Court should not consider the results of that test, and this Court therefore does not consider those results. Trooper Barclay then performed alphabet and reverse counting tests, and Mr. Cerutti completed the alphabet test "perfect" according to Trooper Barclay and made no mistakes on the reverse counting test. The Trooper next requested Mr. Cerutti to submit to a preliminary breath test by blowing into a handheld portable breath testing instrument, and Mr. Cerutti refused to do so stating he had been instructed not to blow into a portable breath test instrument by a friend who was a law enforcement officer. Trooper Barclay told Mr. Cerutti that based on what he saw in his eyes during the horizontal gaze nystagmus test (which again [the Director] stipulated the results of which should not be considered by this Court) Mr. Cerutti "was right there on the line" and if Mr. Cerutti did not take the preliminary breath test, he would arrest him and take him to the next town and get a breath sample there. Cerutti again refused to take the preliminary breath test.

The trooper then placed Mr. Cerutti under arrest for driving while intoxicated and transported him to the Cuba Police Department. The trooper read Mr. Cerutti Implied Consent from the alcohol influence report, and Mr. Cerutti agreed to submit to a breath test. Mr. Cerutti performed the breath test using an Intox DMT.

... Form # 11 [ ("Blood Alcohol Test Report") ] shows that [Mr. Cerutti] had a blood alcohol content of .125%.

The trial court then concluded that "[t]his Court finds that there was not probable cause to arrest Mr. Cerutti for driving while intoxicated, based upon the totality of the circumstances," and

[u]pon due consideration of all the evidence and considering the totality of the circumstances which includes evidence that weighs against reasonable grounds to believe Mr. Cerutti was driving while intoxicated, this Court finds that the Director failed to meet its burden to prove by a preponderance of the evidence that [Mr. Cerutti] was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense.

The "evidence that weigh[ed] against reasonable grounds to believe Mr. Cerutti was driving while intoxicated" included Cerutti's innocent explanation to explain his behavior (i.e., speeding, and driving erratically because he was texting); Cerutti's failure to exhibit impaired physical movements (i.e., "no difficulty pulling over, providing his license and insurance information, following directions or maintaining balance as he exited his vehicle and walked to the trooper's vehicle"); and Cerutti's proper performance of an "alphabet test and counting test." The trial court ordered the Director to reinstate Cerutti's driving privileges.

Merits of Claim that the Trial Court Misapplied the Law

Section 302.505.1 in relevant part provides: "The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was eight-hundredths of one percent or more by weight...." To support the suspension or revocation of a person's license in a trial de novo before the circuit court, the Director must establish by a preponderance of the evidence that (1) the person was arrested on probable cause to believe the person was driving a motor vehicle and thereby committing an alcohol-related offense, and (2) the person's relevant...