Covert v. Fisher

• Decision Date: 19 October 2004
• Docket Number: No. ED 83943.,ED 83943.
• Citation: 151 S.W.3d 70
• Parties: James Steven COVERT, Petitioner/Appellant, v. Carol Russell FISHER, Director of Revenue, for the State of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

151 S.W.3d 70

James Steven COVERT, Petitioner/Appellant, v. Carol Russell FISHER, Director of Revenue, for the State of Missouri, Respondent/Respondent.

No. ED 83943.

Missouri Court of Appeals, Eastern District, Division Two.

October 19, 2004.

Rehearing Denied December 9, 2004.

Alan Kimbrell, Chesterfield, MO, for appellant.

Shelly A. Kintzel, Jefferson City, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

Petitioner appeals from the judgment of the circuit court upholding the suspension of petitioner's driver's license by the Director of Revenue (the director) pursuant to Section 302.505 RSMo (2001 Supp.). The suspension was based on petitioner's arrest for driving a golf cart while intoxicated on the streets of a private subdivision. On appeal, petitioner contends that the circuit court erred in upholding the suspension because the golf cart was not a motor vehicle, and also erred in taking judicial notice of other persons' use of golf carts. We affirm.

On May 11, 2002, at approximately 7:04 p.m., Corporal John Oliveras of the Missouri State Highway Patrol responded to a report of an accident with injuries on Deborah Drive at Judith Circle in the Las Bresas Lake subdivision in Franklin County, Missouri. Upon arriving at the scene, Corporal Oliveras observed an overturned golf cart partially on and partially off the roadway at the intersection of Deborah Drive and Judith Circle. He saw children being attended by firefighters and EMS personnel. He determined that the golf cart may have struck a sign on the side of the road, had overturned, and had ejected the driver and several children, and that petitioner had been pinned under the driver's side of the cart. The golf cart was a 1997 Easy-Go model with an internal combustion engine, steering wheel, accelerator pedal, brake pedal and roll bar.

Corporal Oliveras spoke with petitioner, who was on a gurney in the back of an ambulance. Corporal Oliveras testified that petitioner said he had been "riding" in the golf cart with his four-year-old son on his lap and three or four other passengers. He had "turned in" and hit a sign. When Corporal Oliveras asked petitioner if he had been drinking, petitioner responded that he had "a couple of beers." Corporal Oliveras observed that petitioner's eyes were bloodshot and watery, there was a strong odor of intoxicants on petitioner's breath, and his speech was slurred and somewhat difficult to understand.

Corporal Oliveras performed a horizontal gaze nystagmus test on petitioner. He asked petitioner to recite the alphabet, and petitioner said he did not know it. He did not administer any other field sobriety tests because petitioner was in the ambulance and the paramedics wanted to leave. Corporal Oliveras concluded that petitioner had been driving while intoxicated. Corporal Oliveras told petitioner he was under arrest for operating a motor vehicle while intoxicated, and another officer would contact him when he arrived at the hospital.

Corporal Oliveras testified that police have jurisdiction to patrol the Las Bresas Lake subdivision. Emergency vehicles, mail delivery vehicles, and members of the public may freely drive into the subdivision. On cross-examination, he testified that the subdivision roads are private roads, maintained by the subdivision and not by the state or the county, but are "open for use."

Trooper Ryan Barr proceeded to the emergency room at St. John's Mercy Hospital where he contacted petitioner. Trooper Barr informed petitioner of his Miranda rights and his rights under the Implied Consent Law. Trooper Barr asked petitioner the questions from the Alcohol Influence Report. Petitioner agreed to a blood alcohol test at Trooper Barr's request, which was performed by a qualified phlebotomist. Petitioner's blood test results showed .16% blood alcohol by weight.

The director thereafter suspended petitioner's driver's license pursuant to Section 302.505 RSMo (2001 Supp.), and the suspension was upheld after a hearing. Petitioner filed a petition for a trial de novo in the Circuit Court of Franklin County pursuant to Section 302.311 RSMo (2000), requesting the court to set aside the suspension of petitioner's driving privileges. After a hearing, the trial court denied petitioner's request, finding that the arresting officer had probable cause to arrest petitioner, and that petitioner had a blood alcohol content of .08% or more by weight.

On appeal, we review the trial court's judgment, not the administrative order revoking driving privileges. Barlow v. Fischer, 103 S.W.3d 901, 905 (Mo.App.2003). In so doing, we will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). 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. Bain v. Wilson, 69 S.W.3d 117, 120 (Mo.App.2002). We defer to the trial court's credibility determinations. Verdoorn, 119 S.W.3d at 545. However, we do not defer to the trial court's judgment if the real issue is the legal effect of the evidence. Id.

We may affirm the judgment in a court-tried case if it is sustainable on any ground, not just the ground given. Lough v. Rolla Women's Clinic, 866 S.W.2d 851, 852 (Mo. banc 1993). If the result is correct we do not need to agree with the trial court's reasoning in order to affirm, and we will affirm even if the trial court gives a wrong or insufficient reason. Fix v. Fix, 847 S.W.2d 762, 766 (Mo. banc 1993); Graue v. Mo. Property Ins. Placement, 847 S.W.2d 779, 782 (Mo. banc 1993).

In order to make a prima facie case for the suspension of a person's driver's license pursuant to Section 302.505, the director must establish by a preponderance of the evidence that (1) the driver was arrested upon probable cause for an alcohol-related offense; and (2) at the time of the arrest, the driver's blood alcohol content was at least eight-hundredths of one percent or more by weight. Section 302.505.1 RSMo (2001 Supp.); Verdoorn, 119 S.W.3d at 545. The director has the burden to establish the grounds for suspension or revocation by a preponderance of the evidence. Verdoorn, 119 S.W.3d at 545. After the director establishes probable cause for the arrest and an alcohol level in excess of the legal limit, a presumption of intoxication arises. Id. The driver may then rebut the prima facie case with evidence that his alcohol concentration did not exceed the legal limit. Id. The driver's burden is one of production, not of persuasion. Id. at 546. The director retains the burden of proof throughout the proceeding. Id.

For his first point petitioner asserts that the trial court erred in upholding his suspension "because the golf cart was not a motor vehicle in that golf carts are not used on highways." We disagree.

Petitioner's license was suspended under section 302.505 because he was "driving a motor vehicle" while intoxicated. Section 302.010(9) RSMo (2000) defines "motor vehicle," as used in Chapter 302, as "any self-propelled vehicle not operated exclusively upon tracks except motorized bicycles, as defined in section 307.180, RSMo." Because there is no dispute that the golf cart was "self-propelled," was not operated exclusively on tracks, and was not a motorized bicycle, we focus on whether it was a "vehicle." See Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 707 (Mo.App.2002) (riding lawnmower). "Vehicle" is defined as "any mechanical device on wheels, designed primarily for use, or used on highways, except motorized bicycles, vehicles propelled or drawn by horses or human power, or vehicles used exclusively on fixed rails or tracks, or cotton trailers or motorized wheelchairs operated by handicapped persons." Section 302.010(23) RSMo (2000). The golf cart is a mechanical device on wheels. Although it is not designed primarily for use on highways, it will fit into the definition if it was "used" on a "highway." Stonger, 85 S.W.3d at 708. Actual use on a highway at the time of the culpable event will satisfy the definition. Id. Thus, a self-propelled mechanical device on wheels, not designed primarily for use on highways, is a motor vehicle, if it was being used on a "highway" at the time its driver was intoxicated.

Petitioner's argument under this point assumes, without citation of supporting authority, that the golf cart was not being used on a "highway" at the time its driver was intoxicated. The law does not support this assumption.

"Highway" is defined in Chapter 302, regulating drivers licenses, as "any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways, or alleys in any municipality [.]" Section 302.010(6) RSMo (2000). This definition originally appeared in Section 3, L.1921, 1st Ex.Sess., p. 76, a new chapter that regulated motor vehicle registration, ownership, operation, equipment, use, safety and traffic on the highways. Id. at Section 2. Over the years, as the legislature enacted more expanded provisions governing motor vehicles and separated these provisions into different chapters, it continued to define "highway" in identical language. See Section 7759 RSMo (1929); Section 8367 RSMo (1939); Sections 301.010(4) and 302.010(3) RSMo (1949); Sections 301.010(6), 302.010(9), and 304.025 RSMo (1959); Sections 301.010(9), 302.010(7), and 304.025 RSMo (1969); Sections 301.010(9), 302.010(7), and 304.025 RSMo (1978); Sections 301.010(13), 302.010(6), and 304.025 RSMo (1986); Sections 301.010(18), 302.010(6), and 304.025 RSMo (1994).

At present, in addition to Chapter 302, section 301.010(19) RSMo (2000) contains the identical definition of "highway" for Chapter 301, which governs registration and...